Tobacco Advertising and Promotion (Brandsharing) Regulations 2004

Lord Warner: rose to move, That the draft regulations laid before the House on 26 May be approved [21st Report from the Joint Committee].

Lord Warner: My Lords, the regulations will prohibit the practice of brand sharing, where a tobacco product is promoted by a non-tobacco product, or vice versa, in the United Kingdom.
	We made a commitment in our manifesto, and in the 1998 White Paper Smoking Kills, to place a comprehensive ban on advertising. Smoking remains the principal avoidable cause of premature deaths in the UK, killing 120,000 people per year. It costs the NHS between £1.4 billion and £1.7 billion per year, and one out of every two smokers will die from a smoking-related illness.
	It is estimated that banning tobacco advertising and promotion will result in a 2.5 per cent reduction in the number of deaths caused by smoking, eventually saving up to 3,000 lives a year. The ban on advertising is a vital part of the department's tobacco control strategy, and plays an important part in the struggle against tobacco.
	We consulted on the point of sale, brand sharing and sponsorship regulations together for the three months between August and November 2002. The Tobacco Advertising and Promotion Act 2002 banned tobacco advertising in the press and on billboards from 14 February 2003, and most tobacco sponsorship from July 2003. On 16 March 2004, we made regulations to restrict advertising at the point of sale to a maximum A5-sized area, which will come into force on 21 December 2004, and the regulations on brand sharing are the next step. We consulted very widely. Views were sought from consumers and health groups as well as from retailers and manufacturers of tobacco products.
	It is very important to legislate to prevent brand sharing. As direct advertising has been increasingly restricted over the past two decades, the tobacco industry has tried to promote tobacco through different means. Promoting tobacco using other products, such as clothes or smoking accessories—that is brand sharing—is one of those methods. An early example was in France, where Worldwide Brands Limited was found guilty of breaching tobacco advertising laws with products like "Camel" branded boots.
	Research has made it clear that advertising bans work best when they are comprehensive. Having taken the important step of banning advertising in the press and on billboards, we must continue this work by prohibiting the promotion of tobacco products on other items.
	A brand-shared item has a dual function: its original function as well as the function of promoting tobacco products. An example of brand sharing is Marlboro Classic Clothing. Marlboro clothing tries to capture the image Marlboro wants to project, of a kind of—dare I say it?—"rugged cool". The clothes have their normal function but also have the additional aim of promoting Marlboro cigarettes.
	Another example of brand sharing would be if an Alco pop manufacturer launched a brand of cigarettes with the same branding as the Alco pop, linking the two products together and promoting the tobacco product with the Alco pop's brand. Those examples are where a tobacco brand is used on other products. Brand sharing also occurs where another item is promoted on a tobacco product. An example of that is "House of Commons cigarettes", which I am pleased to say have now been discontinued.
	We need to be clear that prohibiting brand sharing is not stopping legitimate business diversification. If a tobacco company wishes to diversify into other goods, that is perfectly legitimate as long as the tobacco brand is not used. An example is Phillip Morris Companies Inc., which owns both the "Marlboro" brand and the food business "Kraft". The latter is not brand sharing, because Kraft does not have the same branding as Phillip Morris tobacco products, and Kraft products do not promote tobacco products.
	One of the key reasons to prohibit brand sharing is to discourage young people from smoking. Research shows that they are particularly susceptible to brand sharing. The Centre for Tobacco Control in Strathclyde University in 2001 found that awareness of brand-shared products among 15 and 16-year olds was associated with the probability of being a current smoker. Young people are very brand conscious, and this legislation will remove tobacco branding from the market, taking away the availability of tobacco-branded clothing and other items which could be seen as attractive or "cool" to young people.
	We do not yet have a large amount of tobacco brand sharing in the UK. Our aim in these regulations is to prevent future expansion into brand-shared goods by the industry. Now that the comprehensive ban on advertising is in place, the tobacco industry will be looking for new opportunities to promote its products. Brand sharing is one such opportunity. That is why we made clear from the time of the passing of the Tobacco Advertising Bill in 2002 that regulations will be made to prohibit brand sharing. The industry has been aware of these plans for a long time and has been fully consulted on them.
	Companies affected by the brand-sharing regulations will have 12 months to comply with the regulations. The regulations will come into force on 31 July 2005.
	There are exceptions to the regulations to ensure they are proportionate. We extended those exceptions in response to the consultation, to make sure that the regulations are fair and do not penalise the wrong firms. The exceptions are quite complicated and I do not propose to detain your Lordships for too long by going through them in detail at this stage.
	After the three-month consultation period, the regulations were notified to the EU under the technical standards directive between September and December 2003. No observations were made by other European member states. In fact, the legislation is very much in line with EU measures. EU directive 2003/33/EC is due to come into force on 31 July 2005 and will bring into effect a comprehensive advertising ban across the EU. The amount of tobacco promotion in the EU will drop dramatically at that point. That is part of the worldwide move away from tobacco promotion, which is becoming increasingly unacceptable in a modern world that is moving towards being more responsible and less tolerant of the marketing of that dangerous product.
	In conclusion, the regulations are an important element of our comprehensive ban on tobacco advertising and I encourage your Lordships to support their approval as part of the important fight against this harmful product.
	Moved, That the draft regulations laid before the House on 26 May be approved [21st Report from the Joint Committee].—(Lord Warner.)

Lord Skelmersdale: My Lords, the Minister is nothing if not versatile. Only this morning, I heard him talking about hospitals and MRSA. A few hours later, here he is extolling the anathema of smoking, as it were, and the latest government plan to reduce the consumption of cigarettes in this country by dint of secondary legislation.
	The noble Lord mentioned consultation. Like the London Borough of Tower Hamlets—not a body that I would usually pray in aid for my arguments—I found the passion most peculiar. I challenge the Government to justify it in terms other than those that I shall describe. This Wednesday, your Lordships debated a Motion in the name of my noble friend Lord Griffiths of Fforestfach on the subject of the Civil Service. Much of that debate centred on the relationship between civil servants and Ministers—quite rightly. What did not come out—at least, not from my reading of Hansard—was the help that Ministers receive from civil servants in Parliament and the effect of Parkinson's Law on those Ministers. The fact that work increases to fill the time available applies to them especially, with the result that the more Ministers there are, the more legislation is sausage-machined through Parliament.
	That brings me directly to the subject of the regulations. It is fair to say—and I am sometimes fair, even to the noble Lord, Lord Warner—that the Tobacco Advertising and Promotion Act 2002 provides in Sections 11 and 19 for regulations such as these. The object of that Act was to stop the advertising of tobacco products by a variety of methods in order to reduce the prevalence of smoking, especially the number of new smokers taking up the habit. I would be the first to admit that that is a worthy aim.
	About 12 million adults in the UK smoke cigarettes—28 per cent of men and 26 per cent of women. About 10 per cent of them die every year from tobacco-induced diseases. That has remained static during the lifetime of this Government, while between 1971 and 1976, consumption fell by more than 37 per cent.
	The House will readily understand that the promotion of tobacco products is highly likely to persuade people to take up smoking. It is hardly surprising that the tobacco companies believe that there is no evidence that banning advertising reduces consumption, but that increasing prices dramatically does. For many of your Lordships, a phrase of Christine Keeler's will spring to mind. But the Act and the first regulations made under it will prove the point one way or the other. The second set of regulations, the subject of today's debate, is riddled with inconsistencies.
	The first is one of policy. What evidence is there that brand sharing increases tobacco consumption? Yes, I heard what the Minister said about the university research, but I have not read it nor do I know whether it has been peer reviewed—which is so important in these matters. I can understand that clothing might help to increase the sales of perfume, as they are linked products, but why should the sale of aftershave, albeit by a company of the same name, perhaps with the same logo on the outer wrapper, persuade people—and non-smokers at that—that they should go out to buy that particular brand of cigarette or other tobacco product?
	I am glad to hear that the regulations have been referred to the EU, as were the Act and the previous regulations, as the Minister mentioned. It occurs to me to wonder whether the Government have investigated whether the regulations are consistent with the Paris convention for the protection of international property and the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS). As so often, the devil is in the detail. What is even more confusing is that a firm escapes the charge of brand sharing if the intent was not to promote the sale of tobacco products and the firm could not have reasonably foreseen that it would have that effect. How on earth can the point be proved either way when, almost inevitably, it will sooner or later end up in a court of law?
	Another exclusion is to be found in Regulation 4(3)(b), which was noted by the Health Development Agency. Incidentally, that quango is on the Minister's list of bodies subject to review. In essence, it said that the fact that a tobacco brand had been used on a non-tobacco product before 1 September 2002, rather than later, was immaterial. Regulation 4(3)(b) also applies only to the use of a tobacco brand on a non-tobacco product, not vice versa. So, as the Dunhill name was first used on non-tobacco products, where does that leave Dunhill tobacco products? If they are to be let off by that provision, where do the regulations say so? Perhaps they are not to be let off, in which case they and we should be told. Or do the Government believe, as I suggested earlier, that the use of the name does not have the purpose or effect of promoting Dunhill-branded tobacco products? If so, it must be inconsistent, if Silk Cut, for example, buys a company that makes scarves after the magic date, for that to be branded a sales gimmick to sell more cigarettes. More precisely, a German firm called Reemsta was bought by Imperial Tobacco in May 2002. By dint of that, it acquired the licence to buy and sell Davidoff Cigarettes. It also has a very big business in men's toiletries on the continent. Is it not in the same boat as Dunhill, having a valid use of a non-tobacco product name by virtue of Regulation 4(3)(b) but questionable use on tobacco products? Why does Regulation 4(3)(b) not apply to Regulation 3(2)? Indeed, why is Regulation 3(2) in these regulations at all? It seems totally outside the main purport of the regulations.
	If matters are left as they are in the regulations, when they come into force companies will be open to accusations against them, claiming that the use of a common name has the purpose and/or the effect of promoting the tobacco product rather than the scent, hairspray, handbag, scarf or whatever it intends to sell.
	Lastly, given the tobacco companies' history of defending themselves, if necessary, by going to law, what sum has the department set aside to defend the regulations? As I have said, we all agree on the Government's aims to reduce smoking, but is this the way to go about it? I am sure that that point will be made by my honourable friend Mr Loughton in another place when the order is debated on Monday. If they believe that brand sharing is the real danger that the Minister said it was, the Government should think again about how to legislate on it.

Lord Clement-Jones: My Lords, I thank the Minister for his introduction; it was dogged rather than rugged, perhaps. I am grateful for his lucid exposition. I am in no doubt about the importance of brand sharing as a way of getting through in ways that advertising is sometimes not permitted to do.
	But I have rather mixed feelings about the regulations. First, I am pleased that they are before us and that implementation of Section 10 is taking place. I am also pleased that extensive consultation took place before the final version of the regulations was brought before us. Generally, I will certainly not rerun all the arguments in favour of the original Bill. I am afraid that I listened with incredulity to the noble Lord, Lord Skelmersdale, rerun some of the arguments. The argument was won; the Bill went through this House; I was very pleased to be able to help deliver one of the Government's manifesto commitments, if I may so; and the Government adopted the Bill in the Commons at the time. I was pleased by that quick action, and I do not believe that we would necessarily have been in this position unless I had picked up the Bill and run with it in this House.
	I am in a slightly difficult position. I am one of the Bill's parents but I do not recognise its progeny in all respects as regards the regulations. Many of the organisations responding to the consultation are disappointed by the outcome. If they looked at the regulations now, they would say much the same thing. The regulations are very complicated, which is probably the one point on which I agree with the noble Lord, Lord Skelmersdale. The Minister will be aware of many of the adverse comments made by campaigning organisations, voluntary organisations, local authorities, the BMA and other health organisations, criticising quite a number of the provisions of these regulations. Their objections are manifold.
	First is the crucial question of the pre-existing non-tobacco-based exemption in Regulation 4(3)(b), which could drive a coach and horses through the regulations. To give a frivolous example, could we be talking about Scooby Doo cigarettes in the future? I do not know. We do not have to look very far for a real, live example. I am not nearly as doubtful about Dunhill's ability to sell all its other products. These regulations give it carte blanche, and the name Dunhill is mainly associated with cigarettes. Its continued ability to sell its other products will help to reinforce its cigarette brand. These regulations, as I interpret them, allow it to do that.
	The 18-months' transitional period was very widely criticised. It would be very useful to have the Minister's view on why we must have such wide pre-existing exemption and the 18-months' transitional period. It was clear to all the manufacturers that the brand sharing regulations would be introduced; in fact, one of the major retailers has already closed down its operations and ceased operation more widely in this area, as it knew that the provisions were coming.
	The question on which I seek the most clarification from the Minister is the burden of proof. He has heard the wide criticisms made of the difficulty in that regard. I am a very rusty lawyer in this area, but there seems to be a very high hurdle as regards purpose. The Independent Television Commission said in its evidence that it would need internal documents to prove purpose. That is what one might call a very subjective test; it is quite difficult to prove. However, the element of effect, which was dealt with in the original Clause 10, seems to cure some of the problems. Effect is a much more objective test; that is why I supported the original Clause 10—now Section 10. That double-pronged attack of purpose and effect allowed us to ensure that brand sharing did not take effect.
	I would like to hear the Minister's commentary on the matter, but I am reasonably content that the exception in Regulation 4(1) requiring the person concerned to prove a negative purpose and effect will be effective. I therefore disagree with those who think that that exception is weak. It will be useful to hear the Minister's view.
	There is no doubt that brand sharing is a very useful tool to a tobacco manufacturer. I thought that the consultation paper summarising some of the evidence in this area was very cogent. There is very high awareness of brand sharing among young people, especially young smokers, and it is used when other forms of promotion are not available. But there is doubt about whether the regulations will be wholly effective. At this stage, the Government should undertake to review the regulations at an early stage to see just how effective they have been. I do not know whether that should be at the one-year mark or after two years, but I would like the Minister to give that undertaking so that we can see whether the regulations have their intended effect.

Lord Monson: My Lords, as the noble Lord, Lord Skelmersdale, has pointed out, the order is likely to be fairly ineffective in reducing the incidence of smoking and hence is somewhat draconian. I wish to question some of the assumptions on which the order is based, as revealed in the Explanatory Memorandum. I declare my usual interest as a wholly unpaid supporter of FOREST.
	It is claimed, yet again, that 120,000 people die from smoking each year. How is that figure arrived at? As I have pointed out on more than one occasion, to no avail, not much more than 15 years ago, shortly before he died, Lord Houghton of Sowerby tabled a Question to ask how many deaths per annum could be attributed to smoking. The Answer given was 50,000. A little while later, that was doubled overnight to the surprisingly round figure of 100,000. A few years later, it was raised to the suspiciously precise figure of something like 111,437. Then again, following that claim, it was raised to the suspiciously round figure of 120,000. I suppose that it will go on climbing as the years go by. Let us assume for the sake of argument that 120,000 is correct. What proportion of that 120,000 is taken up by people who represent genuinely premature deaths? That is to say, people who die 10 or 15 years earlier than they might otherwise have done. How many are people who die only two or three years earlier than they might have done? We all must die some time, after all. Most of us would much rather die at the age of 77 from smoking-related heart disease than at the age of 79 from Alzheimer's disease.
	Then there is the cost to the NHS, which the Explanatory Memorandum puts at between £1.4 and £1.7 billion. Is this cost not greatly exceeded by the revenue from duty on tobacco and tobacco products? It always used to be claimed that this was the case. Has that changed? Of course, money is not everything; there are considerations other than financial. I do not imagine that the Minister can answer my first question without further reference, but he could almost certainly say what the annual revenue is from duty on tobacco and tobacco products.
	I will now, having been critical, make a constructive suggestion about the compulsory health warnings. The order reiterates the need for compulsory health warnings. It really does not work to say "smoking kills". A cigarette is not a stick of dynamite or a phial of cyanide. The public are well aware of that. They know subliminally that although many people die early, many go on smoking into their 80s and 90s. Noble Lords might have heard of Madame Calment of Arles, who lived to the age of 121 having smoked two cigarettes a day until the age of 116. It kills some people; it does not kill others. It depends to a large extent on your genes, I suppose.
	To say "smoking kills" is ineffective, and the message loses its impact. Far more effective, as I discovered when I was in Spain earlier this year, is the wording on Spanish cigarette packets. They say things such as "smoking causes chronic bronchial problems" or "smoking clogs the arteries". People can see that smoking does not automatically kill, but they cannot see what is happening inside their lungs and arteries. Messages such as those, by not exaggerating, end up being far more effective in shifting public opinion. That is a genuinely constructive suggestion, which I put to the Minister.

Lord Warner: My Lords, I am grateful to noble Lords for their questions, and I will try to answer them. The noble Lord, Lord Skelmersdale, raised the question of the proof of the effect of brand sharing on young people. I cited the Strathclyde research, which is good, sound, solid research, and we stand by it. I did not go into the details of exceptions, but I will briefly outline the provisions on exceptions, because they deal with some of the points raised by the noble Lord, Lord Skelmersdale.
	There are exceptions to the regulations to ensure that they are proportionate. We extended those exceptions in response to the consultation to ensure that the regulations are fair and do not penalise the wrong firms. Essentially, where the purpose was not to promote a tobacco product and it could not have been foreseen that would be an exception. Where the brand is not used by both tobacco and non-tobacco products, or does not appear to be, that would be another ground. Where the brand sharing occurred before 1 September 2002, the date when the consultation was published, is another consideration. Long-established brand shares first used before 1 September 2002 have an exception from the ban as long as the purpose was not to promote a tobacco product, and the presentation of the name, emblem or other feature does not make it appear that it belongs to the same brand as a tobacco product.
	Dunhill, which was mentioned, is an example of a long-established brand whose luxury goods are distinct from its tobacco products. That is why it would be enabled to have an exception. The noble Lord, Lord Skelmersdale, raised the subject of Davidoff. That company is likely to suffer losses from the brand-sharing regulations. Unlike Dunhill, whose branding on luxury goods is distinctive enough from its tobacco branding to be exempt from the regulations, Davidoff's brand sharing is likely to fall foul, because it used to have a shared website for both its tobacco and luxury goods, although that has since changed. The response from Davidoff to the 2002 consultation was the strongest received. It argued that it would have to either rebrand all its goods or remove them from the UK market. There are confidential issues here, but it is right that it does not qualify for the exceptions as provided for in the regulations.
	The noble Lord, Lord Skelmersdale, raised the question of whether the regulations were sound in international law and intellectual property rights. Yes, the regulations were agreed with the Patent Office. The noble Lord, Lord Clement-Jones, raised the issue of the 18-month lead time. I gently say, in my dogged rather than rugged way, that the 18-month lead time was cut to 12 months following the consultation. That is the lead time for implementation that we have provided for.
	The burden of proof is dealt with in regulation 6.2 and 6.3, where the person seeking to rely on some of the exceptions must raise the issue, but if that is done the prosecution must prove their case beyond reasonable doubt. That is regulation 6.4, since the noble Lord said that he is a little rusty on his law. There was a suggestion that the regulations are defective in that they allow a coach and horses to be driven through them; that is not so. The regulations are clear that the person does not use the product for the purpose of promoting a tobacco product. This will make the room for manoeuvre small for tobacco companies trying to get round the regulations.
	These are sound regulations. I will not go into detail in response to the noble Lord, Lord Monson. We do not agree on the way in which the figures were calculated; we have not agreed for a long time. I am happy to send him our calculations again. We do not agree with him on "smoking kills"; it is a fair, accurate and effective message. I will read Hansard and respond to him on the detail of his speech. These are good regulations. I say to the noble Lord, Lord Clement-Jones, that we will study their effect carefully. If there are any problems, we will not hesitate to tighten them up where we can. These regulations are sound, they will do the job that they are required to do, and I commend them to the House.

Lord Monson: My Lords, before the Minister sits down, will he say whether the revenue from tobacco duty exceeds the cost to the NHS of an estimated £1.4 billion to £1.7 billion?

Lord Warner: My Lords, I do not carry that information around in my head. I said that I would write to the noble Lord.

On Question, Motion agreed to.

Maximum Number of Judges (Northern Ireland) Order 2004

Lord Filkin: rose to move, That the draft order laid before the House on 10 June be approved [21st Report from the Joint Committee].

Lord Filkin: My Lords, this order relates solely to the number of High Court judges in Northern Ireland. It is not about their method of appointment, terms of office, or any decisions that they reach when discharging their judicial office. The maximum number of High Court judges in Northern Ireland is prescribed in Section 2 of the Judicature (Northern Ireland) Act 1978. The order will increase the maximum number of High Court judges allowed by statute, from nine to 10.
	The High Court in Northern Ireland is relatively small. There are nine High Court judges, three Lords Justices of Appeal and one Lord Chief Justice. The judges all undertake a wide range of work beyond their assigned area. All judges undertake criminal work, and, in one day, a judge might hear applications for release from custody, applications or case management issues and a trial at hearing.
	The demands placed upon the High Court judiciary continue to increase. This is not a short-term increase in judicial workload. There has been a steady increase in business levels. Court of Appeal, Crown Court business and High Court civil business levels are all rising. For example, during 2003, there was a 35 per cent increase in Crown Court cases in the Belfast Division alone. That represented 42 Crown Court cases that required to be tried by a High Court judge, of which 20 were scheduled cases to be tried without a jury. For the rest of the province, an additional 42 cases were received. On average, Crown Court trials will last up to two weeks. However, a significant number lasts much longer. For example, there is a case to be heard in September that is expected to last six months. That will deplete the available judiciary at that level significantly, especially so when overall numbers are small.
	As well as the increases in Crown Court work, there are increases in the caseload undertaken by the High Court judges in virtually all areas. The Court of Appeal, in which High Court judges also sit in Northern Ireland, has seen a steady and significant increase in business. Some 138 appeals were received in the Court of Appeal in 2001, and that figure rose to 160 appeals in 2003. The number of cases waiting to be heard has increased to 135 cases in 2003.
	Cases requiring urgent attention also continue to increase. For example, two judges are regularly assigned to judicial review work, which continues to increase. Some 341 such cases were received in 2003. Such cases require immediate judicial attention in many instances, if the remedy is to be effective. There is an increase in Chancery business and in the ordinary day-to-day work of the High Court, including claims for money damages and in contract matters. A second judge has been assigned to the important work of the Family Division, where business also continues to increase. Provisional figures show that in 2003 High Court judges sat 333 days on Children Order work, which was an increase on 253 days in 2002 and 154 days in 2001.
	Outside their court work, judges are increasingly required to undertake other important responsibilities. For instance, the judges on the Judicial Studies Board have an increasingly demanding role in ensuring the delivery of training. We expect to see further demands on the judges for what might be described as extra-judicial work.
	The Lord Chief Justice of Northern Ireland is seeking an increase in the number of judges at the right time. While he has been exploring ways of making the disposal of business more efficient—something that we work closely with him on—there is a clear need for this statutory increase in the maximum complement to ensure that we have the flexibility that the Lord Chief Justice needs. That is the opinion of the Lord Chief Justice. The order will allow us to increase the number of judges when business needs absolutely require it.
	Approval of the order will also enable the High Court in Northern Ireland to continue to meet the need for efficient and timely disposal of court business. There is a recruitment exercise at present to recruit a replacement High Court judge—subject to the House's approval—and some further discussions with the Lord Chief Justice. That scheme might also be used to fill the additional post. I beg to move.
	Moved, That the draft order laid before the House on 10 June be approved [21st Report from the Joint Committee].—(Lord Filkin.)

Lord Shutt of Greetland: My Lords, I thank the Minister for explaining the order. The explanatory memorandum shows that there were six judges; then, there were seven; and then there were nine. Now, there will be 10. That seems to be a quick way of spending over £200,000.
	The Minister talked about the increasing workload, but there is a fundamental question about whether Northern Ireland is over-judged or under-judged in this sense, either as a ratio to the population or in terms of the number of cases that come before the judges. It was always my understanding that ordinary crime in Northern Ireland was low. Perhaps that is no longer the case. We know that crime associated with the Troubles was high, but I understood that the rates of other crime were quite low.
	The order says that an increase in complement may be necessary to allow the Lord Chief Justice more time to spend on his administrative duties. Is it the best use of the Lord Chief Justice's time to spend it on administrative matters? Should there be another way of approaching that question? I do not say that the change should not happen, but there is a trend—six, seven, nine, 10—and substantial sums are involved. How does the position fit in with that in the rest of the UK?

Lord Kingsland: My Lords, will the Minister confirm that the terms of appointment for the new High Court judge will be identical to those for his or her predecessors?
	I want to ask the noble Lord about the basis upon which the new appointment will be made. As the Minister is aware, the previous increase in the allotment of High Court judges was from seven to nine. The reason given at the time was that the Human Rights Act 1998 would, inevitably, have profound implications for the volume of work done by the High Court Bench. Can the Minister tell us whether that has turned out to be true?
	I also note that, in 2003, there were 42 Crown Court cases in the Belfast Division, alone, that required to be tried by a High Court judge; and that that amounted to a 35 per cent increase on the figure for the previous year. Can the Minister let us know—to the extent that he is able to do so this morning—why there was such a substantial increase in criminal cases over that year?

Lord Filkin: My Lords, the noble Lord, Lord Kingsland, spoke with such quiet courtesy that I had not realised that he had ceased.
	The first issue was the question asked by the noble Lord, Lord Shutt of Greetland, about whether, as he put it, Northern Ireland was "over-judged". It is not a question to which there is a simple answer, but it is the sort of question that Ministers and good officials ask themselves in such circumstances.
	I can happily give the number of comparable High Court judges in England and Wales, and I can give an instance of the position in Scotland, although it is more complicated, because there are no exactly comparable positions. The figures show, in large measure, what we would tend to expect them to show, which is that, for England and Wales, the ratio of High Court judges to population is, on the face of it, significantly more economical than in the smaller jurisdictions. We would be amazed if it did not show that. It is hard to infer from those figures alone whether the higher ratios in Northern Ireland or Scotland necessarily mean that they are right or wrong.
	In England and Wales, with a population of 52 million, there are 106 High Court judges. That gives a ratio of approximately one High Court judge per 500,000 people. It is tricky making a fair comparison with Scotland. In the Inner House, First and Second Division, there are 10 High Court judge equivalents. If we add on those in the Outer House, which deputises for some of the Inner House, there are 22. It is difficult to know how many of the 22 we should count along with the 10 to get a fair comparison. I am not prevaricating; I am just saying that it is not possible to give a simple answer. Looking at Northern Ireland, which is the thrust of the comparator, a population of 1.7 million currently has nine High Court judges, giving a ratio of 1:166,000.
	I shall be direct with noble Lords. When this order came before Ministers, as is our wont we have an extremely close relationship with the Lord Chief Justice for Northern Ireland, although our roles remain separate. I and my noble and learned friend Lord Falconer of Thoroton have the highest regard and respect for him. The Lord Chief Justice, who took up his post recently, has made it quite clear that he needs an additional High Court judge. In those circumstances, it is not right for a Minister simply to say "no"; we should enter into a process of discussion with him. In a sense he is buttressing why he believes there is a strong case for an additional High Court judge and we shall look at it. If, as I would expect, we were fully persuaded that that was right, we would allow the additional vacancy to be filled, which would be consequent on this order being passed. That is what I expect will happen.
	But there is a further need, one which I have discussed with officials. In public affairs it is always possible to make a case at the margin for an additional post. Such a case is not difficult to mount and often it can be true that there is merit in it. The fact that it is easy to do does not mean that there is no case. But sometimes one must also look fundamentally at whether there are other ways to introduce more economy into the system by using the rare and scarce resource of our senior judiciary to the greatest possible advantage.
	Issues like whether lower-level administrative tasks can be devolved so that judges can apply their expertise where it is most valued and important are those on which officials should be working. However, that kind of reflection is not a five-minute job. One would expect the exercise to take 12 months or so. Moreover, no process of this kind should be started on the basis of any form of prejudgment or a bias assuming that something is necessarily wrong. One should always approach such matters with a view to making the maximum use of our skilled judiciary so as to meet the interests of justice and those of the public economy at the same time.
	I have made these positioning remarks because I thought that noble Lords would be interested to learn that, as well the short-term provision, there is a need to make an additional ceiling provision which we may then decide to fill. There is also a need to look carefully at how to achieve more economy in the system, if it proves possible to do so.
	I turn to the specific questions asked by the noble Lord, Lord Kingsland. The terms of appointment remain unchanged. As regards the human rights impact, we have tended to find that cases have become more complex rather than that there has been any increase in volume. If I can give him more detail on that point, I will be pleased to do so.
	I have been even more candid today than perhaps is my wont, but I hope that giving the context for this order has been helpful to noble Lords.

On Question, Motion agreed to.

Courts Act 2003 (Consequential Amendments) Order 2004

Lord Filkin: rose to move, That the draft order laid before the House on 10 June be approved [21st Report from the Joint Committee].

Lord Filkin: My Lords, as the House will recall, following the Auld review, the Lord Chancellor initiated a project to establish a statutory Criminal Procedure Rule Committee in partnership with the Home Secretary and the Attorney-General. The aim was to simplify the criminal trial process and to establish one set of rules for all criminal courts in England and Wales. The purpose was to ensure better case management techniques and to introduce streamlined and more modern procedures, making it easy for the public to understand what is happening, leading to the more efficient proceedings of justice.
	The same argument is also being applied to the family justice system, whereby with the imminent arrival of a unified administration of the courts within the Court Service there is now the potential to regard the court system as a totality. We should therefore ensure that the court rules reflect that.
	This order will complete the necessary amendments and repeals to primary legislation that are consequential on the establishment of the new Criminal Procedure Rule Committee and the Family Procedure Rule Committee. Accordingly the order is consequential on a policy laid before and agreed by Parliament during the passage of the Courts Bill last year. We are now ready to establish the Criminal Procedure Rule Committee and we are in the process of recruiting the members of the Family Procedure Rule Committee. When fully functioning, the Criminal Procedure Rule Committee will provide a single forum in England and Wales for the development of rules determining the practice and procedures to be used in all criminal courts. Similarly, the Family Procedure Rule Committee will make rules applying to all family proceedings in England and Wales.
	The order will be made under the general power in Section 109(4) and (5) of the Courts Act 2003, which allows the Lord Chancellor to make any supplementary, incidental or consequential provisions for the purposes of giving full effect to the provisions in the Act. That includes powers to amend or revoke primary legislation. The legislative changes do not put forward any new policy, nor will they effect any change in policy.
	The combined effect of the legislative changes in the Courts Act and this order will enable criminal procedure rules to be developed with a more strategic purpose. The Criminal Procedure Rule Committee will have overarching responsibility for rules governing the practice and procedure of the criminal courts, embracing magistrates' courts, the Crown Court and the Court of Appeal Criminal Division. The Lord Chancellor has now approved the appointment of members to the committee, which will take up the baton from the advance working group that established and prepared the way.
	Similarly, the Family Procedure Rule Committee is intended to have overarching responsibility for rules governing family proceedings. The arrangements for the recruitment of that committee are under way, and the committee will promote the modernisation and harmonisation of the family procedure rules, again contributing to the promotion of the more effective handling of cases.
	It is proposed that this order should come into force on 1 September 2004, but it will not affect the general operation of the enactments amended where they relate to criminal procedure rules until the first of those rules come into force, and where they relate to family procedure rules, until the first of those come into force. I hope that this makes it clear that until the new rules come into force, the existing rule-making bodies will continue to have the power to make the rules affecting criminal and family business.
	The coming into force of the first criminal procedure rule will be the trigger for the cessation of the power of the Crown Court Rule Committee to make rules for criminal cases in the Crown Court and for appeals to the Court of Appeal Criminal Division. In addition, the Lord Chancellor will no longer have power to make rules governing the procedure in the Crown Court for indictments. Similarly, the coming into force of the first family procedure rules will be the trigger for the cessation of the Lord Chancellor's power to make rules of court in respect of adoption matters.
	This statutory instrument is an essential step in the modernisation and streamlining of our court procedures. I commend the order to the House.
	Moved, that the draft order laid before the House on 10 June be approved [21st Report from the Joint Committee].—(Lord Filkin.)

Lord Goodhart: My Lords, no fewer than 16 statutes are amended by this order and therefore it is clear that it needs full explanation and vetting. I have to say that I am satisfied with the explanation set out in the Explanatory Memorandum of the reason for all these amendments, but the process plainly justifies what is now the accepted practice following the recommendations made a couple of years ago by the Delegated Powers and Regulatory Reform Committee that powers in any statute to amend other primary legislation by secondary legislation should be exercisable only under the affirmative resolution procedure.

On Question, Motion agreed to.

Discharge of Fines by Unpaid Work (Prescribed Hourly Sum) Regulations 2004

Lord Filkin: rose to move, That the draft regulations laid before the House on 10 June be approved [21st Report from the Joint Committee].

Lord Filkin: My Lords, the Courts Act received Royal Assent in November 2003. It contained a new scheme for fine enforcement. The new measures make a clear distinction between offenders who co-operate with the courts and pay their dues, and those who do not.
	The main provisions include the wider use of attachment to earnings and deduction from benefits orders; a new offence for non-provision of means information; a percentage increase in the fine on default; and further sanctions such as clamping and registration on the new register of judgments for persistent defaulters. The sanctions focus on those who may reasonably be called "won't payers", and combinations of these are currently being piloted in six magistrates' courts committee areas. A national pilot of the wider use of attachment to earnings and deduction from benefits orders is also under way.
	For those who may be called the "can't payers", people genuinely unable to pay, the fine may be discharged through fines payment work as set out in Schedule 6 to the Courts Act 2003. This is the power of a court to allow an offender to work off his fine by means of unpaid work. This is the provision in the Courts Act that requires the regulations we are debating today.
	Until now, offenders have been able to avoid punishment by claiming that they do not have enough money to pay their fines. These are not people who refuse to pay but who genuinely have no means of doing so. Typically they are offenders who have been fined but whose financial circumstances have changed since they were sentenced and from whom the money can no longer be collected. At the moment, courts have no option but to remit the fine; in other words, to let them off.
	It is for these people that fine payment work is being introduced. Where it appears to a court that a fine cannot be enforced by any of the usual means, it can give the offender the chance to discharge the fine through unpaid work instead of cash. This is likely to avoid lengthy, expensive and probably fruitless fine-enforcement action. It also avoids having to remit the fine. We believe that fine payment work will be a valuable contribution to the improvement of fine enforcement.
	Where the offender agrees to the proposal that his fine may be discharged through work, the court makes a "work order". I should say here that if the offender does not agree and does not have a good excuse for refusing, then serious consequences follow, including the possibility of imprisonment.
	The work order must state both the amount of the fine outstanding and the number of hours of work required to discharge it. Clearly there needs to be a consistent rate at which an amount of fine converts into hours of work, and this is the subject of the regulations before the House today.
	The Government are proposing a conversion rate of £6 an hour. For every £6 that the offender owes in fines, he must complete one hour of work. Any odd fractions of an hour are rounded up to the nearest whole number. The offender is therefore working at a nominal rate of £6 an hour, although, of course, he does not see any of that money. Indeed, no money changes hands at all. All that happens is that as the offender works the amount of fine that he owes reduces.
	We are proposing a rate of £6 for two reasons. First, concern was expressed during the passage of the Courts Bill that offenders would be made to work for less than the national minimum wage. We have ensured that that will not be so. Secondly, the rate needs to be more generous to the offender than the unpaid work option in the Criminal Justice Act 2003, which deals with fine defaulters, as those provisions deal with offenders who are unwilling rather than unable to pay.
	The fine defaulter provisions in the Criminal Justice Act are available only where the court is at the point of being able to send a fine defaulter to prison; in other words, all other means of eliciting payment have been tried and failed or are considered inappropriate, and the only sanction left is imprisonment or the alternatives provided by the 2003 Act, one of which is unpaid work. This type of serious wilful refusal to pay a fine needs to be contrasted with the position of an offender subject to the fine payment we are discussing today, where the only reason for not paying could be that the person has lost his job through no fault of his own.
	The conversion rate for the fine defaulter provisions is around the £5 mark; the offender is therefore working for a nominal £5 an hour. We have therefore decided that the fine payment work we are discussing today should be £6 an hour so that there is, for good reason, a differential between the two.
	We will pilot the rate to see whether it is right in practice or whether it will require adjustment at the end of the pilot. Should it appear that change is required, the House will have a further opportunity to debate an amended rate. Schedules 5 and 6 to the Courts Act are being piloted to enable the best package of measures to be introduced nationally in the light of the experience gained. Prior to the final scheme being rolled out, the issue will be returned to the House for further debate. I recommend the regulations to the House.
	Moved, That the draft regulations laid before the House on 10 June be approved [21st Report from the Joint Committee.—(Lord Filkin.)

Lord Kingsland: My Lords, I am most grateful to the Minister for the manner in which he introduced the regulations. I believe that the regulations are made in the broader context of the Government's perfectly justifiable desire to improve performance in enforcing the payment of fines.
	As I understand it, the background to what the Courts Act 2003 stipulated was provided by the July 2002 White Paper, Justice for All. I hope that noble Lords will forgive me if I read an extract from that document. It observed that the national payment rate for fines and other financial penalties—at least at that time—stood at 59 per cent. It continued:
	"There are also unacceptably high levels of arrears and very marked variations in performance between areas, not all of which are explicable by socio-economic factors. The payment rate in West Yorkshire last year was 86% but in Merseyside it was 38%. In Dorset it was 89% but in Cambridgeshire it was 36%. Despite recent improvements in fine enforcement methods, such as obtaining information from the Department for Work and Pensions about defaulters' addresses, innovative payment methods, and an injection of £10 million extra for enforcement from April 2002, more needs to be done to bring the poorly performing areas up to the level of the best".
	That is an observation about the relative performance across the country. Is the Minister in a position to tell us whether the ratios have changed over the past two years; and, in any case, to say what measures his department is taking to reduce these disproportionalities?

Lord Filkin: My Lords, the noble Lord, Lord Kingsland, is right as to the origin of these measures before the House today, and for good reason: because if the ultimate sanction decided by a court after having found a person guilty is not enforced, to both the individual and wider society the justice system would appear a sham. Fine enforcement, therefore, is absolutely fundamental to upholding the rule of law and justice.
	The noble Lord rightly signalled that the historical position, by nobody's measure, was satisfactory; 59 per cent would not do. Let me give the noble Lord, from recollection, the position that we have reached over the past two years through this process of change. I shall have to write to him with the differentials in different areas because, even if I had the information in my head—which I do not—it is too complicated to give from the Dispatch Box.
	The question concerns not only the extent to which the laggards have closed up with the leaders, but also the totality. It is a perfectly right and proper question. The total picture is one of significant and positive progress. That does not imply for one second that we think we are there. In the past year, the comparative figure to the payment rate of 59 per cent was 74 per cent. That is almost spot on with the target of 75 per cent. We would have been even more pleased had it been in advance of it, but it was fairly close to the target. According to the very latest figures for the national aggregate picture, in May an 82 per cent rate was achieved. So the trend is continuing in the right direction.
	Getting there has been a process of implementing the measures in the Courts Act 2003, with particular focus on a persistent driving down by the court services, by magistrates' courts committees and by the Minister, my honourable friend Christopher Leslie, to ensure that this work is raised in profile within the courts services and magistrates' courts. One has to signal to people that this issue matters and that they have to get better at dealing with it.
	The broad picture is as I have given it. Substantial progress has been made, but there is a substantial way to go. None of us should be satisfied until we have closed the gap as far as is humanly possible. We do not believe that we have got there yet, although we are pleased with progress to date.
	These regulations will relate only to a relatively small proportion of people; out of some 1 million fines imposed a year, the regulations will affect only 40,000. But they enable us to ensure that 40,000 people, who would otherwise not have paid an appropriate fine or its equivalent, do not escape meeting the sanction they owe, as judged by the courts. I shall write to the noble Lord, Lord Kingsland, with the further details that he requested.

On Question, Motion agreed to.

Representation of the People (Form of Canvass) (England and Wales) Regulations 2004

Lord Evans of Temple Guiting: rose to move, That the draft regulations laid before the House on 16 June be approved [22nd Report from the Joint Committee].
	My Lords, with the permission of your Lordships, it will be convenient to consider along with the regulations for England and Wales, the corresponding regulations which relate to Scotland. The two sets of regulations are very similar and their effect is the same. The small differences between them arise because of the slight variation in Scottish and English law and reflect those variations.
	The purpose of the regulations is to prescribe the form which electoral registration officers should use for the annual canvass of electors which takes place each autumn. The form will be sent to all householders for completion by them in respect of persons living in their property on 15 October 2004. The form is designed to record the name and address of the persons who are eligible to register to vote. The regulations do not deal with the way the canvass is conducted, but simply with the contents of the form which electoral registration officers send out.
	The regulations are necessary because the existing form, which was used for the 2003 canvass of electors, contains special provisions concerning the registration of citizens of the 10 accession states that were expected to join the European Union on 1 May 2004. As noble Lords will know, as a result of provisions in the Maastricht Treaty, nationals of EU countries living in the UK are able to register to vote in local government and European parliamentary elections in the UK. The 2003 canvass form allowed citizens of accession states to register prior to 1 May 2004, in advance of the elections in June. The accession states, however, became full members of the EU on 1 May and a new canvass form is required to reflect that. The new canvass form makes no distinction between citizens of the accession states and citizens of any other member states of the European Union. In the notes accompanying the new form, the 10 new accession states have been added to the list of EU countries. Further, to update the form, all references to the 2004 European parliamentary elections have been removed.
	Since a new form was necessary, we have taken this opportunity to review the contents and structure of the canvass form. I will go into a little detail on the changes that we have made to the existing form as a result of that, once I have explained the purpose of the individual regulations and schedule that make up the Statutory Instrument.
	The House will note that the preamble to the regulations indicates that the Electoral Commission has been consulted on the regulations. The commission made a number of helpful comments which have been incorporated. In developing the new canvass form, we have also consulted the Association of Electoral Administrators and taken account of its views.
	In addition, and for the record, I should add that the Government consider that the regulations are fully compatible with the European Convention on Human Rights. Regulation 1 covers citation, commencement, interpretation and the extent of the regulations. They will come into force to apply to the canvass of electors this autumn. Regulation 2 revokes the existing regulation that prescribes the form of canvass which the new regulations will replace. Regulation 3 simply states that the form attached is prescribed for use for the canvass of electors. Regulation 4 concerns the form of words for the two versions of the electoral register which are prescribed for use in applications for registration other than at the annual canvass.
	There is a full version of the electoral register and an edited version. The full one is available for three main purposes: for elections and referendums; for the prevention and detection of crime; and for checking a person's identity when he is applying for credit. The edited register omits the particulars of electors who have requested that their details be removed and is available for sale to anyone for any purpose. The notes that accompany the canvass form now clarify that each elector must choose each year whether he wants his details to be excluded from the edited register. We hope that this will be helpful for persons completing the canvass form. Part 1 of the schedule sets out the new form of canvass and Part 2 prescribes the form of words for the two versions of the electoral register that registration officers should use in applications for registration.
	I shall now comment on the main changes that we have made to the form. The canvass form is based largely on the existing form and I hope that it is self-explanatory. I have explained that we have taken this opportunity to review the contents and structure of the form. Our aim is to make the form more user-friendly and to address certain issues in relation to the form.
	We have made a number of changes to simplify the form and to make it less cluttered. We have removed the column on the form for the title of electors—Mr, Mrs, etc—as we understand that those details are not necessary for electoral registration officers.
	The form for England and Wales is used to identify those over the age of 70 who are no longer eligible for jury service. By statute, this information must be passed to the Court Service and will be used for jury-summoning purposes. We have, however, removed from the existing canvass form the column that sought information about electors who are not aged 70 at the time of the canvass, but who would reach 70 during the course of the year. We have done that because the Court Service no longer requires that information and there is no statutory requirement for electoral registration officers to supply it. Again, this change helps to simplify the form.
	We have considered ways in which the form may help to achieve a more accurate register. The form has been amended so that the column which previously asked for citizens of EU states to state their nationality has been altered so that in future all persons are asked to state their nationality. That will help EROs to identify any persons who may inadvertently apply to register when they are not eligible to do so on nationality grounds. The information will not, however, be made available on any publicly accessible register.
	We have added an additional column to the form to allow persons included on it to indicate whether they would like to be sent an application form for a postal vote. The Government believe that postal voting offers greater flexibility and convenience for electors and we are keen to extend the choice of postal voting to as many electors as possible. We consider that the change to the canvass form helps to do that and enables electors to decide whether they would like to apply for a postal vote at the same time as they register to vote. I should clarify that each elector will still need to complete and sign a postal voting application form before they can be added to the list of postal voters.
	The regulations update the form to be used for the 2004 canvass of electors and make a number of changes to the form which we consider will simplify the form for electors and help to achieve a more accurate electoral register. I commend them to the House. I beg to move.
	Moved, That the draft regulations laid before the House on 16 June be approved [22nd Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

Lord Goodhart: My Lords, I have a number of questions about the regulations. First, the Scottish canvass form states in relation to local government electors:
	"Those citizens registered as local government electors are able to vote in elections for the Scottish Parliament".
	The form for England and Wales contains no similar statement; that is, electors who are resident in Wales are able to vote in elections for the National Assembly for Wales. Would that not have been a desirable feature? Could not some similar statement to that which is provided for Scotland be incorporated when the forms are next revised?
	I turn to my second question. Both forms state:
	"If you are a citizen of a Member State of the European Union, you may be able to vote in European Parliamentary Elections if you wish, but you will need to fill in another form to allow you to do so. Ask the electoral registration officer for more details".
	Why is it necessary to have a separate form to enable citizens of European Union countries other than Ireland, Cyprus and Malta to vote in the European elections? The necessity to apply for a separate form is plainly a disincentive to registration. I cannot see any useful purpose being served by this requirement. The requirements for being placed on the register of local electors for EU citizens are the same as those for being placed on the register for European elections. Would it not therefore be preferable to make the same form the necessary form for registration of EU citizens to vote in both local and European elections?
	Thirdly, I note that there is a provision that states that there is a need to consult each resident before completing the form to find out whether a resident wants his or her name to be deleted from the edited register. Would it not be simpler to move simply to individual registration and to get everyone, rather than one member of each household, to sign the necessary form?
	There are clear advantages to doing that. First, the register would become much more accurate. In the past, it was the practice in a number of areas for the names of former occupiers to be kept on the register for a year or two on the assumption that they may simply have failed to fill in the register. Secondly, having individual registration would mean that it would be safe to dispense with a statement of identity by a third party—a requirement that was plainly desirable to reduce the scope for fraud but which led, in the election on 10 June, to a significant number of votes being rejected. In view of the uncertainty about the desirability of extending postal voting, it might have been better to omit the column that invites people to apply for a postal voting form until such time as we have moved from household to individual registration.

Lord Swinfen: My Lords, if the title column is to be removed from this form, how will the electoral registration officers know who is likely to be a Member of this House and therefore not entitled to vote in parliamentary elections?

Lord Evans of Temple Guiting: My Lords, the noble Lord, Lord Goodhart, asked three questions. The first related to an apparent inconsistency with Scotland and Wales. We find the point that he has made extremely helpful, and will consider what to do about it with the next canvass form.
	The noble Lord also asked why EU citizens are asked to complete a further form if they wish to vote in European parliamentary elections in the UK. Citizens of an EU state living in the UK are all registered as local government electors, as they are able to vote in local government elections in the UK. However, citizens of an EU state resident here are not obliged to vote in European parliamentary elections in the UK, as they may wish to vote in the elections being held in their home state. It is not possible for a person to vote in European parliamentary elections in more than one state. The further form that a citizen of an EU state completes should he wish to vote in the UK records further details about the individual, which are needed to ensure that he does not vote in the European elections in his home state as well.

Lord Goodhart: My Lords, I am sorry to interrupt before the Minister moves on. Is it not the position in this country that people can be registered in more than one constituency at the time of a general election, although they are of course only entitled to cast their vote in one? Would it not be perfectly legitimate therefore to treat EU citizens on the same basis and make it clear to them, if necessary, that registration in this country for the European elections would not entitle them to vote both here and in another EU state?

Lord Evans of Temple Guiting: My Lords, I shall have to write to the noble Lord about that point.
	The noble Lord's third question was whether we were planning to introduce individual registration. We are currently considering the proposals contained in the Electoral Commission's Voting for Change report, published in 2003. That report covered various aspects of the electoral process and includes the proposal that we should move to a system of individual registration. We are in particular considering the experience in Northern Ireland, where individual registration has already been introduced and people wishing to vote must provide a number of identifiers, including date of birth, a signature and a national insurance number.
	On the question asked by the noble Lord, Lord Swinfen, it is really up to Members of the House of Lords to make it plain whether they qualify to vote. If that is the only objection to leaving off Mr and Mrs, and so on, I hope that it answers his question.

On Question, Motion agreed to.

Representation of the People (Form of Canvass) (Scotland) Regulations 2004

Lord Evans of Temple Guiting: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the draft regulations laid before the House on 17 June be approved [22nd Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Business

Lord Davies of Oldham: My Lords, I apologise to the House but the Minister about to introduce the next orders is not present—ah, yes he is. If I look as if I am about to move the adjournment of the House and there is a slight hiccough in my throat, it is because I am happy to indicate that I should not be speaking at this moment.

Immigration (Provision of Physical Data) (Amendment) (No. 2) Regulations 2004

Lord Bassam of Brighton: rose to move, That the draft regulations laid before the House on 10 June be approved [22nd Report from the Joint Committee].

Lord Bassam of Brighton: My Lords, I should first apologise for my lateness in your Lordships' House.
	The business before us is the draft Immigration (Provision of Physical Data) (Amendment) (No. 2) Regulations 2004, which are made in exercise of the powers conferred on the Secretary of State by Section 126 of the Nationality, Immigration and Asylum Act 2002. Section 126 enables the Secretary of State, by the making of regulations, to require that an immigration application be accompanied by specified information about an external characteristic or to enable an authorized person to require an entrant to provide information of that sort.
	Two sets of regulations have already been made under the power. The Immigration (Provision of Physical Data) Regulations 2003 provided that an entry clearance application made in Sri Lanka was required to be accompanied by a record of the applicant's fingerprints. The Immigration (Provision of Physical Data) (Amendment) Regulations 2004 extended the requirement to entry clearance applicants in Djibouti, Ethiopia, Eritrea, Tanzania and Uganda and to those seeking leave to enter the UK who, upon doing so, present a 1951 refugee convention travel document issued by a country other than the UK.
	The purpose of this statutory instrument is to extend the current regime to new categories of entry clearance applicant. The new provision will require those applying for entry clearance in Kenya and Rwanda to provide fingerprint data. When we debated the 2004 regulations, the Government explained that to ensure consistency with applications for entry clearance in east Africa we would seek to extend these powers to include Kenya, but could not do so at the time as we needed to carry out some work at the High Commission in Nairobi to make it suitable for the collection of fingerprints. I can advise your Lordships' House that we have nearly completed that work and so we will be in a position to collect fingerprints from visa applicants in Kenya from 1 September 2004.
	Applications from Rwanda were considered by the British High Commission in Kampala, Uganda, as the numbers did not justify a separate entry clearance section in Kigali. A consequence of the 2004 regulations was that these applicants had to make the journey from Kigali to Kampala as their applications now had to be accompanied by a record of their fingerprints. By extending these provisions to Rwanda such a journey will no longer be necessary. This is a straightforward improvement to the service that can be quickly put into place and we will be able to implement this from 1 August. We also believe that this measure will supplement our wider efforts in east Africa to combat abuse of our immigration and asylum processes.
	We are already getting encouraging results from Sri Lanka and the five east African countries covered by the 2004 regulations. Using the information collected under the 2003 and 2004 regulations is proving an effective way of revealing applicants who have sought to conceal an adverse immigration history from the entry clearance officer by using a false identity. The Government remain convinced that greater use of biometric technology will support efforts to prevent document and identity fraud. It will enable those who have an entitlement to enter the UK to do so without hindrance, while preventing those who seek to circumvent our controls from doing so. I fully appreciate that there will be concerns over proportionality and data protection but we consider that the extension to Kenya and Rwanda of the safeguards built into the regime established by the 2003 and 2004 regulations is adequate to address any such concerns.
	These safeguards are designed to deal with the collection of data and its subsequent use. With regard to data collection, any applicant who is under 16 years of age will have his fingerprints taken only in the presence of a responsible adult who is over 18 years of age and not employed by the Government.
	Turning to data usage, fingerprints collected in Kenya and Rwanda will be added to the immigration and asylum fingerprint system database. This will allow the identification of any visa applicant who subsequently makes an asylum or immigration application in a different identity. This in turn will help to establish the nationality of those who no longer have a basis on which to remain in the UK and assist with securing their removal. In common with other fingerprints collected in respect of immigration and asylum applications, data will be shared with the police and other law enforcement agencies in the prevention or investigation of crime. All such exchanges will be in compliance with the relevant data protection provisions. In terms of data retention, Regulations 7 and 8 of the 2003 regulations require these records to be retained for a maximum of 10 years, after which they are destroyed.
	Any entry clearance application that is not accompanied by the necessary fingerprint data may be treated as invalid. There may be exceptions, including applicants who, because of physical disability or injury, cannot provide a record of their fingerprints. However, it is anticipated that the majority of applications that are not accompanied by a record of fingerprints will be treated as invalid. The consequence of an application being invalid is that the applicant will enjoy no right of appeal. The system will be operated in a reasonable way to limit the impact on applicants.
	Because of the importance of these regulations and their value to detection, I commend them to the House.
	Moved, That the draft regulations laid before the House on 10 June be approved [22nd Report from the Joint Committee].—(Lord Bassam of Brighton.)

Baroness Anelay of St Johns: My Lords, we on these Benches feel that it is important that the immigration system should be fair, work effectively and should not give rise to unnecessary abuse. So we support provisions that strengthen the system successfully but we need to ensure that the provisions do not cause unintended consequences and that they do not lack proportionality.
	I recall that when the 2003 order, to which the Minister has referred, came to this House, the programme was merely a pilot scheme. It merged into a fully fledged existence earlier this year with a further order that extended the number of countries covered by five. I use the term "merged" advisedly because there seems to have been little or no debate about the appropriateness of the pilot scheme suddenly becoming a fully fledged scheme.
	At that stage, on 9 February, Beverley Hughes, then the Minister for immigration in another place, said in the debate on the order:
	"We have no specific plans to include further countries".
	But in almost the same breath she said:
	"We want to extend the proposals to Kenya".—[Official Report, Commons Standing Committee on Delegated Legislation, 9/2/04; cols. 10–11.]
	So it is no wonder that we are concerned about how much forward planning the Government have in mind.
	Mrs Hughes commented that the only thing inhibiting the Government at that stage was the construction of another small building. I am interested in what the Minister said today; that is, that the construction is nearly completed and it will be available from 1 September. I understood him then to say that the numbers did not justify a separate application point for Rwanda. I was intrigued by the way in which he referred to the position in Rwanda because my understanding from the memorandum that the Home Office supplied to the Joint Committee on Statutory Instruments was that the Government are bringing forward this application in respect of Kenya and Rwanda as a new matter. The way in which the Minister introduced this made it sound as if people from Rwanda already have to make the journey to Kenya to make an application. I hope that in his response the Minister will expand on the point of what has been happening to people who have been travelling here from Rwanda who need entry clearance. I did not think that they had to come within the scheme at this stage. What has been happening to people from Rwanda until now? Does this mean that there will now be a separate application point for them in Rwanda that will take their fingerprints?
	The Minister may recall the order brought forward last summer by the noble Lord, Lord Evans of Temple Guiting, who I see is in his place. The noble Lord, Lord Evans of Temple Guiting, said then that the Government see the future of identification as being about more than fingerprints and as including iris and retina recognition. Today we have reference only to fingerprints. Last summer we were led to believe that the programme would involve a more technical application of biometric details. Does this mean that, as the pilot scheme has merged into a fully fledged scheme, Parliament is giving permission for any kind of biometric recognition to be imposed at a future stage or are we being asked just to "okay" fingerprinting? We need to know that.
	It would be helpful to the House if the Minster could give an indication of how much further the Government intend to extend this programme of fingerprinting those who make an application for entry clearance and when they plan to do so. How will the list grow and when? We are all aware of the heavy workload of the Immigration Service, which is hard pressed although it does its best to work effectively. We need to know what extra strains are going to be placed on it in the future. However, we support the making of this order.

Lord Avebury: My Lords, in February, we on these Benches agreed that the requirement that an immigration applicant be required to provide biometric data—in practice, a fingerprint—should be extended from Sri Lanka, where the successful pilot was carried out, to all the east African states, except Kenya. We understood that the reason for not including Kenya in the list that we examined in February was the purely practical one that the physical circumstances at the High Commission in Nairobi were not yet in a state where fingerprints could be taken. We therefore have no objection to the extension of the list to include Kenya.
	As for Rwanda, I understood the Minister to say that up until this point the number of applications from Kigali was so small that they were considered in Kampala and that it was as a result of the opening of an office in Kampala to consider entry certificate applications there that the requirement to provide fingerprints, which had already been imposed on anybody making an application via Kampala, needed to be extended now to Kigali. So we do not object to that either.
	As for the noble Baroness's comment on the use of other biometric data, we understand that the order as drafted would allow iris recognition or other forms of biometric data to be used. However, the more we extend the scheme to use fingerprints only, the more difficult it will be in future to make the switch. All the computer systems will be set up to cope with fingerprints, and the expensive transition to, for example, iris recognition would then be enormous. So the more we go down this route, the more likely we are to be locked into the use of fingerprints irrespective of the merit of other forms of biometric data.
	On the previous occasion we said that we were in favour generally of using biometric data for the purposes of immigration control, subject to adequate data protection safeguards, and we are aware of the useful work that has already been done on the subject. There was convincing evidence that the use of fingerprints has been effective both in catching those who have committed immigration offences and in deterring unqualified applications. I hope that the Minister will be able to give the House some information about the effect of fingerprinting in the countries specified in the previous order since it came into effect. He said that it was already proving effective but without giving any statistics.
	I hope that the Minister will be able to tell us, for example, the number of applications made in those countries since February, the number of applications made in the equivalent period before the order came into operation, and whether any of those who have been fingerprinted under the February order turned out to be those of persons who have been refused entry certificates on a previous occasion. I fully accept that the technique is likely to prove effective, but we would like to have some actual data to back that up.
	I asked on the previous occasion also whether the Information Commissioner had been consulted on the proposed collection of biometric data from applicants in east Africa, and the answer was, "No; but the commissioner had not raised any issues in relation to the pilot in Sri Lanka". The noble Baroness, Lady Scotland, who was dealing with the matter on that occasion, promised to make inquiries. I wonder whether it is possible for the Minister to report on the outcome of those.
	I suggest that in a matter of this importance and sensitivity there should be what I might call an affirmative resolution-type procedure. In other words, rather than wait for Mr Thomas, the Information Commissioner, to raise the alarm, and bearing in mind that he may not have the resources to scrutinise several thousand statutory instruments every year—a difficult enough task even for your Lordships—the Government should ask him specifically to look at any SIs that might be thought to raise data protection issues, and ask him to certify that he is satisfied with the manner in which the powers are intended to be exercised.
	The order approved in February also allowed for the fingerprinting of those travelling to the UK on CTDs, as the Minister has mentioned already, on arrival from anywhere else in the world. If they were coming from Sri Lanka or from east Africa they would already have been fingerprinted under these orders, as will other passengers coming from those countries. The noble Baroness then said that that was to prevent holders of CTDs issued in some other country destroying their document after arrival and then making a new claim for asylum in the UK.
	I hope that the Minister will now be able to tell the House how many CTD holders have been detected using this ruse since February; what countries they came from; and whether the IND has been able to remove them to the countries where they had already gained asylum. Presumably they would be from countries outside the EU since otherwise they would have done better to wait until they had been able to gain citizenship in the countries of origin. Then, they would have been able to come here lawfully under the free movement provisions of the European Union.
	More generally, we have discussed the problem of arriving passengers who destroy their documents en route or even at the arrival port before presenting themselves to an immigration officer. At Waterloo and at the channel ports where there are juxtaposed controls, there has, as we know, been a gratifying reduction in the number of undocumented arrivals. Unfortunately, at all the Heathrow terminals and at Gatwick, the figures provided by the IND to Sub-Committee F of your Lordships' European Union Committee in connection with its study, Fighting Illegal Immigration: Should carriers carry the burden?, showed that, up to September 2003, the numbers were increasing. Does the Minister think that the use of biometric data will have an impact on the numbers, and if so, are there any plans to extend the practice to other areas of the world?

Lord Bassam of Brighton: My Lords, I am grateful, as ever, to the noble Baroness and the noble Lord for their interest in and support for this important development in the practical application of policy. I will try to respond to the points that have been raised as best I can, although I must confess that I do not have all the information that certainly the noble Lord, Lord Avebury, would like me to have.
	It is worth reiterating that the pilots have so far been very successful. I will come to the figures shortly. The Sri Lanka pilot proved that the technology worked. UK visas are now rolling out fingerprinting to further posts as a result of that, and the United Kingdom is committed to incorporating biometrics in visas and the visa process by the end of 2007 under EU regulations to which the United Kingdom has signed up.
	The noble Baroness, Lady Anelay, asked about the position in Rwanda. We want to extend the arrangements to Rwanda—that is why we have the order before us—in order to improve the system for Rwandan applicants. The Rwandans have to apply for visas in Kampala, Uganda. As all Kampala applicants have to give fingerprints, Rwandans have in the past had to travel to Kampala to apply. These regulations will allow Rwandans to submit fingerprints in Kigali, at the British embassy, rather than travel to Kampala. We think that that is a significant improvement and should make the process much easier for them.
	As to biometrics, the draft EU regulations may in future require the use of two biometric indicators. There is no decision yet on which, but at present the United Kingdom is using fingerprints. We have no plans to use other biometrics in visas ahead of any decision on the second biometric test which is provided for in those regulations.
	I can understand the curiosity expressed about the success and effectiveness of the visa fingerprinting scheme so far, and I have some data. Roughly speaking, we think that about 1 per cent of visa applicants in the east African countries have shown themselves to have been previous asylum seekers. Local management information also indicates that, in the past two months, some 12 applications from asylum seekers have been made by people whom we have been able to identify by using these fingerprint records.
	Breaking the data down by place, to 21 June this year, in Colombo we found 161 asylum matches; in Addis Ababa there were seven; in Asmara, two; in Dar es Salaam, 18; and in Kampala there were 53. As I said, the percentage is about 1 per cent or perhaps a fraction under; I have not done the maths myself. However, the numbers are significant and demonstrate to us the value of this extra protection to our system.

Lord Avebury: My Lords, does the Minister have any figures that demonstrate the likelihood that unqualified applicants have been deterred by the necessity of providing fingerprints, as has been claimed on a previous occasion?

Lord Bassam of Brighton: My Lords, it is hard to provide statistics for those who have been deterred as, obviously, if they have been deterred, they are not likely to show up in the figures.

Lord Avebury: My Lords, if I remember rightly, the number of applications reduced considerably after the process was inaugurated.

Lord Bassam of Brighton: My Lords, I was about to say that the figures are considered to have reduced as a consequence. Clearly, people who are fearful of being detected are being put off applying. We consider that that is of benefit.
	The noble Lord understandably asked about the Data Protection Commissioner. We have not specifically sought the commissioner's views on this matter but, as I think the noble Lord recognises, we have not been made aware of any concerns. That is an important consideration but this is only an extension of an existing scheme and we have not thought it necessary to pursue the point with the Data Protection Commissioner. We shall, of course, need to ensure that in the future we keep adequate lines of communication open on that point, particularly if we seek an extension to the way in which the scheme operates although not necessarily the range of countries to which it applies.
	I am advised that the number of Sri Lankan undocumented arrivals has fallen dramatically since the introduction of fingerprinting in Colombo in July 2003 and due to the impact of other immigration measures. I believe that the average number is down from about 150 a month to just two or three. That reinforces the point I made earlier that it is considered that the range of measures that we have introduced is very effective. We ought to take note of the important deterrent value of fingerprinting.
	I believe that I have answered most of the points that have been raised but I shall check the record and ensure that I provide both the noble Baroness, Lady Anelay, and the noble Lord, Lord Avebury, with responses to any points that I have not covered.

On Question, Motion agreed to.

Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2004

Lord Bassam of Brighton: rose to move, That the draft order laid before the House on 27 May be approved [21st Report from the Joint Committee].

Lord Bassam of Brighton: My Lords, the order has been seen and cleared by the Joint Committee on Statutory Instruments and the House of Lords' Merits Committee on 15 June.
	The order, subject to the approval of the House and of another place, will bring the revised codes of practice into effect, from 1 August 2004. Under Sections 60, 60A and 66 of PACE my right honourable friend the Home Secretary has a duty to issue codes of practice to regulate the police in the exercise of their powers. There are six codes of practice, Codes A to F. The current versions of Codes A to E came into force on 1 April 2003. Code F on the visual recording of interviews, which places no statutory requirement on the police, was introduced in April 2002. Since then further legislative changes in the Criminal Justice Act 2003 have affected police powers and procedures and parts of the current codes require review.
	Since their introduction in 1985, the codes of practice have been reviewed every four to five years. This meant that parts of the codes were often out of date and lacked accuracy and relevance to statutes in force and best practice. As noble Lords will be aware, Section 67 of PACE, as amended by Section 11 of the Criminal Justice Act 2003, enables a simpler, less bureaucratic approach to amending the codes. That has enabled us to look at revising the codes at more frequent intervals, potentially on an annual basis. This current set of proposed amendments makes use of that process.
	The amendments before your Lordships' House largely reflect the provisions of Part 1 of the Criminal Justice Act 2003. We have also taken the opportunity to make a small number of other amendments. I will cover the changes in a bit more detail shortly but the key considerations in making amendments to the codes are: to reduce bureaucracy; to free-up police officers' time for front-line duties; and to improve police efficiency and effectiveness. I am sure that your Lordships' House is in full agreement with delivering those aims. I am also certain that there is similar accord in ensuring these are achieved at the same time as maintaining adequate safeguards and protections for members of the public. That remains an important balance. Where we have sought in the codes to introduce or adapt police powers and procedures, we have also looked to ensure that the rights of the individual are taken fully into account.
	Part of that approach is also reflected in the process of consultation. PACE, as amended by Section 11 of the Criminal Justice Act 2003, allows for a more focused consultation exercise. We chose to adopt that approach but also included other organisations such as the coalition of children's charities and Liberty.
	It is important to add here that the consultees were also involved in the process of drafting guidance on the measures included in Part 1 of the Criminal Justice Act 2003 on areas such as extended periods of detention, telephone reviews of detention, street bail, recording property and warrants to enter and search. That resulted in the issue of guidance to the police service and others through the issue of Home Office Circulars Nos. 60 and 61.
	More importantly, it meant that key stakeholders were actively involved at an early stage in the codes revision process. That has proved to be very beneficial and I know that stakeholders welcomed that degree of involvement. We intend to build on that when looking at how best to develop the codes to ensure that form and content are best suited to the needs of practitioners in the criminal justice system and to the public.
	Turning to the proposed amendments, I hope that they will not prove to be contentious. Changes to Code A consist of amending the stop and search provisions in relation to items of criminal damage provided for by Section 1 of the Criminal Justice Act 2003; and to the introduction of the requirement for police and police staff to record encounters with members of the public. The latter provides for the implementation of Recommendation 61 of the Stephen Lawrence inquiry report. This is a significant amendment focused on making police stops more accountable and transparent.
	In Code B we are proposing to take account of the provisions of Section 2 of the Criminal Justice Act 2003 allowing a person to accompany a police officer in the execution of a warrant. We are also proposing that in searches conducted under Schedule 1 of PACE or Schedule 5 of the Terrorism Act 2000 the senior police officer present can be in charge of the search, irrespective of rank. It currently stands at inspector level. This is a procedural rather than a statutory requirement which has been in Code B since 1985. That is not to say that it is not effective but it does not suggest that it is necessarily the best use of a senior officer's time. A constable exercises the powers of entry, search and seizure regularly and frequently under PACE and other statutes without the need for an inspector's presence. We must maximise the use of officers' time and this is a good example of what can be achieved, bearing in mind that the constable is exercising powers by a warrant issued under the authority of a circuit judge.
	Code C contains a number of changes arising directly from the Criminal Justice Act 2003, including: the requirement to record a suspect's property; extended detention periods; telephone reviews of detention; bail elsewhere than in a police station and the role of the Crown prosecutor in the charging process. Members of this House debated vigorously but always constructively some of these measures during the passage of the 2003 Act and it would be inappropriate to return to those arguments here. I would say, however, that guidance issued on implementation of these measures reflects the concerns raised at the time by their Lordships. The noble Baroness, Lady Scotland, gave noble Lords opposite the opportunity to comment on that guidance in draft format and, as I mentioned earlier, we provided a similar opportunity to key stakeholders. We have sought to ensure that the contents of the legislation and the guidance are fully reflected in the code.
	We have also made an important clarification in Code C in relation to the attendance of the arresting officer at the police station when the suspect is brought before the custody officer. At present the code requires any comments by the suspect on the arresting officer's account to be recorded. That implies that that account has to be put to the suspect, but not that it has to be by the arresting officer. That has raised concerns and some confusion. The change provides clarity on the need for arresting officers unnecessarily to attend the police station with every suspect. That is a more effective use of a police officer's time and enables more time to be spent on frontline policing.
	There is nothing to prevent the arresting officer attending the police station with the suspect, being called into the police station by the custody officer, or being contacted by radio or telephone. The key issue is that the arresting officer is able to decide on a case-by-case basis how best to deal with the suspect. We must look to provide officers with operational discretion where it is in the best interests of tackling crime and disorder and where safeguards for the suspect are maintained.
	In Code D, amendments take account of Sections 9 and 10 of the Criminal Justice Act 2003, which concern the circumstances in which police may take fingerprints and DNA without consent following arrest for a recordable offence and in police detention. Minor revisions are carried out in Codes E and F, but in all codes we have amended the text to refer, where appropriate, to police staff. That enables more effective use of civilian support staff, as provided for in the Police Reform Act 2002.
	Taken both individually and together, the changes will achieve the aims of improving efficiency and effectiveness, reducing bureaucracy and freeing up police officers' time for frontline duties. The codes will now be in line with current legislation and provide a more up-to-date platform towards future regular and more frequent review. We are conscious that change has implications for training and skills, and are working with practitioners and training providers on those issues. However, we are also conscious that change should mean improvement and we have achieved that in the order. I beg to move.
	Moved, That the draft order laid before the House on 27 May be approved [21st Report from the Joint Committee].—(Lord Bassam of Brighton.)

Baroness Anelay of St Johns: My Lords, I thank the Minister for his comprehensive explanation of the matter. He was right to remind the House that there has been an opportunity to comment on the draft guidance, and that there has been consultation. Both those matters showed good practice that we hope to see in other issuing of guidance. I can therefore say that we support the order, although I have one or two brief comments to make.
	The Minister said that the Government intended to update the codes more frequently, potentially annually, because the process whereby they can be updated has become more straightforward. We can all understand that it is good practice that the codes should reflect legislative change as quickly as possible, so that police officers who have to implement their side of any legislative change are able to do so in a good-practice manner.
	It is also right, however, that we recognise that any regular updating brings with it an additional burden on the police, in that they have to go through regular retraining to adopt changes. On this occasion, the group of amendments to the PACE code is fairly hefty and weighty. Although the codes try to reduce the bureaucracy that by the nature of legislation is imposed on the police, the process of updating in itself brings new requirements for them to go through training. For the constable on the beat, that is no mean feat—no pun intended; that was awful.
	The Minister referred to matters that were the subject of debate on the then Criminal Justice Bill last year. Like him, I well recall our debates on the recording of property by the police after an arrest, and I certainly do not seek to reopen debate on the issues. Those matters were so contentious because we were trying to achieve a balance between taking up too large a part of police time in the recording of every tiny bit of a person's property, as against the importance of ensuring that someone who has been charged but not yet convicted should have the right to have their property properly recorded so that it can be reclaimed at the appropriate point.
	Further than that, my noble friend Lord Hunt of Wirral pointed out last year that proper recording of the evidence can be of great use to the police as well. He said:
	"Without the obligation to record, there will be disputes as to what was originally in the suspect's possession, particularly where money is concerned. Items may have evidential value or be used to assist in inquiries into other matters".—[Official Report, 30/6/03; col. 698.]
	It was right that this House took recording very seriously. At Third Reading, the Government agreed to make some useful changes to their original plans on the matter. The codes today properly reflect the intent of the House at the time. I therefore think that what the Government have brought forward does not bring in any onerous or bureaucratic requirement, but achieves the right kind of balance.

Lord Avebury: My Lords, I am grateful to the Minister for the comprehensive explanation that he gave of the changes being made. I have questions to ask on only one matter; namely, Code A on stop and search. In spite of the fact that there was consultation on the draft guidance, as the noble Baroness acknowledged, we are still anxious about the reports published recently concerning the excessive use of stop and search against members of the Islamic minorities in this country. Were any special efforts made to consult representatives of the various Muslim communities? What views have they expressed? Does he think that the application of variations in Code A, particularly the reflection of the recommendations of the Lawrence committee, will have an impact on the relative frequency of stops and searches applied to members of those minorities? That frequency has changed fairly drastically since 9/11.
	The Minister will correct me if I am wrong, but there is an impression that police officers differentially target people whom they consider likely to be from one of those communities, because they have it in the back of their minds that those people are more likely to be involved in the commission of terrorist offences. That could lead to disproportionate leaning on members of those communities, as there was in former years on members of the black communities. If that were to happen, it would be very harmful for community relations in this country. I hope that he will be able to give us some assurances on the point.

Lord Bassam of Brighton: My Lords, I am grateful for the thoughtful responses from the noble Baroness and the noble Lord on the matter. The noble Baroness put her finger on it in saying, in supporting the order, that it was important that we established good practice so that we properly reflected our legislative intent. I was most grateful to her for her concluding comments—that she genuinely felt that we had achieved that objective and taken meaningful strides forward to reduce bureaucracy, while introducing a range of measures that placed some bureaucratic burdens on the police service. We have genuinely striven to get that balance right. It is very hard to achieve, and there is recognition of that difficulty. We have made good progress, however, and the order has gone a long way in that general direction.
	As ever, the noble Lord is very diligent in pursuing points with regard to stop and search. I appreciate where he comes from on that. We are at one in wanting to ensure that we get the balance right in terms of stop and search, but must recognise that there have been problems in the past. It is worth putting on record that the Government are committed very strongly—as much as we have ever been—to race equality. There is certainly no magic key, tool or single solution to the complex problem regarding stop and search. But we do not want to run away from the issues. We are working carefully with minority groups. From our perspective, it is important to achieve an honest and open debate about stop and search, its use and value, and to have a forum where we can conduct that debate.
	If we are to try to help this exercise we need to improve our levels of understanding and the appreciation in wider communities of the difficulty that confronts us all. To that end we have launched the Criminal Justice System Race Unit, which works across the criminal justice system to try to achieve a balanced and proportionate approach to stop and search. A stop and search action team has been formed to take forward some of that work to ensure that the police's power of stop and search is used fairly and effectively—and that it is of value to the prevention and detection of crime. After all, if stop and search as a tactic, a strategy and a technique winds up ethnic communities it will not achieve its purpose at all. The noble Lord, Lord Avebury, was right to remind us of some of the difficulties that it can create. Certainly in the past and in my previous professional life I have been very aware of the concerns raised and the issues involved.
	However, I do not think that there can be any denial that stop and search has a value in the criminal justice system. If we were to stop using it or to use it in a way that became ineffective and we missed important activities that led to the commission of a major crime or terrorist incident, the Government would be understandably and rightly criticised—as any government would be—for failing to ensure that that power and approach could be used by the police as part of their battery of measures available for preventing and detecting crime.
	I am grateful for the support of both opposition parties during this short debate. I commend the order to the House.

On Question, Motion agreed to.

Chilterns Area of Outstanding Natural Beauty (Establishment of Conservation Board) Order 2004

Lord Whitty: rose to move, That the draft order laid before the House on 16 June be approved [22nd Report from the Joint Committee].

Lord Whitty: My Lords, in my remarks I shall also cover the subsequent order relating to the Cotswolds, because the processes are virtually the same for the two areas.
	Today is the fruition of many years of hard work by the existing management bodies of the Chilterns and Cotswolds AONBs, their constituent local authorities, the Countryside Agency, officials from my department and many others. The Countryside and Rights of Way Act 2000 enables the Secretary of State to establish a conservation board for any area of outstanding natural beauty. This is particularly relevant where the constituent local authorities of that area ask her to do so. Following a review of their management structures, the Chilterns and the Cotswolds AONBs are the first to take this route.
	It is expected that setting up a conservation board will increase management efficiency, raise the profile of the AONB and help it attract more funding for project work. The orders deal with the establishment, composition and administration of the boards, as well as their powers and functions. I shall attempt to highlight the most relevant parts of the orders. Each board will consist of members appointed by local authorities, parishes and the Secretary of State. The membership ratios are set out in the Countryside and Rights of Way Act 2000 which require at least 40 per cent of board members to be appointed by constituent local authorities and at least 20 per cent by constituent parishes.
	The size of each board has been dictated largely by the desire of each local authority to be represented. It is intended that both boards will establish an executive committee to reduce any possibility of unwieldiness. As a result of the requirements of the 2000 Act the selection process for only the parish council members needs to be included in each order at Schedule 2. That process is the result of lengthy consultation.
	Once these orders have come into force, we will prepare a further order establishing a specific code of conduct for board members. In the interim, the more general provisions of the Local Government Act 2000 will apply. Membership of the board is unpaid. However, reasonable allowances are payable. Schedule 3 to each order sets out the procedure and timings of meetings. I would draw your Lordships' attention to the requirement that the first meeting of each board must be held within 80 days of the establishment date. It is intended that both boards will hold their first meetings before the operative date of 1 February 2005. This will provide an opportunity for members to get to know each other and elect a chair and vice-chair and, if the board wishes, determine the membership of any sub-committees.
	The 2000 Act enables the Secretary of State to transfer any local authority functions relating to the area of the AONB to the board or to provide that those functions should be exercisable concurrently by the board and the constituent local authorities. In the case of these orders, the local authorities wished to have the powers exercised concurrently. A protocol is being drawn up between the local authorities and existing management teams to specify clearly in what circumstances each party will be responsible for which functions. Although not part of the order, that should provide clarity for the public and prevent confusion over responsibility.
	It is not envisaged that the boards will exercise all of the functions listed in the order regularly, but their availability will help the boards fulfil their statutory purposes. The functions will include such actions as the prevention of damage to the AONB, signposting of footpaths and bridleways and the protection of ancient monuments.
	Existing local authority staff engaged on AONB work will be transferred to the boards on their establishment date. A list of staff who will be transferred will be compiled by my officials with the help of the current employing authorities. The list will be definitive for determining transfers. Staff who are transferred will enjoy continuity of employment and they are fully protected by the terms of Schedule 4 to each order and, in any event, that is without prejudice to TUPE rights.
	Financial arrangements are not specified in the orders as it was felt that including them might restrict the boards' growth and independence. Financial support will continue largely as at present, with funding supplied by the Countryside Agency—subject, of course, to any future announcement by the Secretary of State in light of my noble friend Lord Haskins's recommendations on the delivery of rural services. The only difference between the current funding situation and that for a board is that the board would be unable to recover VAT payments. The agency has agreed to increase its contribution to AONB costs to offset the increased costs of VAT to the local authorities. A board will have the power to borrow money without authority from the Secretary of State, pending receipt of expected revenue. It can also borrow money for any purpose relevant to its functions or the prudent management of its financial affairs with the Secretary of State's approval.
	In my department's view, these orders comply with the European Convention on Human Rights. The establishment of a conservation board is the desired way forward in both the Chilterns and the Cotswolds. They are both extremely beautiful parts of England and there is an eagerness to see these orders progressed so that we can enhance the management of those areas and, therefore, I hope that your Lordships endorse the orders. I beg to move.
	Moved, That the draft order laid before the House on 16 June be approved [22nd Report from the Joint Committee].—(Lord Whitty.)

Baroness Byford: My Lords, I thank the Minister for moving the order and for dealing with the two orders at the same time, because the mechanics apply equally to both, so I have no difficulty with that. The only matter upon which I was reflecting was that it does not seem four years ago since we were debating at length that Countryside and Rights of Way Act. My only disappointment, which I shall record again, was the fact that honourable friends in another place did not have the chance to debate a single word of this particularly important section because of the guillotine that operated in that House. However, we support the orders. Anything that helps to conserve and enhance the natural beauty of these two wonderful areas is welcome.
	I should like to ask the Minister one or two questions and I have read carefully through yesterday's Commons Hansard. As the Minister has said, the financial details are not specified in these statutory instruments, except that travelling, conference expenses and visits will be reimbursed. That is in order, but can the noble Lord put a little more flesh on that? What are the anticipated costs of establishing these two area boards and what are the costs likely to be for the next two years? That is not too much to hope for. Such guidance would be helpful to your Lordships.
	As the Minister said, due to these changes, it is not possible to recover the VAT. What is the anticipated VAT expenditure figure? Will it be taken from the existing money that the Countryside Agency already has and allocates to the various AONBs, or will it be in addition to it?
	I turn to the Explanatory Memorandum and look specifically at the make-up of the two AONBs. I understand that for the Chilterns board 15 local authorities are involved. Fourteen gave consent quite willingly, but one had reservations and gave its qualified support. For the Cotswolds board, 17 local authorities are involved. Thirteen gave their consent and four gave consent subsequently, with qualifications. What were those reservations? Were they expressed at district level, or were they parish queries? It would be helpful for the House to have a better understanding of that.
	While I am dealing with the groupings laid down in the statutory instruments, particularly with regard to the Chilterns area, can the Minister explain why there is such a difference between the numbers of parishes within the various groupings? The reason is probably geographical. In the Chilterns, for example, group 1 will have one representative out of 10; group 2 will have one out of 20; group 3 will have two out of 50; and group 4 will have two out of 38. There is a big variation—50 compared with 38 for only two places. I suspect that some parishes may feel that they will not have the opportunity to be represented and I should therefore be grateful for clarification.
	I should like to thank the Minister and to reflect on the debate we had during the passage of the CROW Act when we decided to let the parish councils elect themselves. We had a long debate on how that would be achieved. The procedure is unwieldy if one of the groups is 50-strong and presumably the cost must be borne out by the new AONBs.
	I turn to a matter raised by my honourable friend Mr Clifton-Brown in another place yesterday. As the Minister is aware, the Cotswold District Council administers 80 per cent of the area covered by the Cotswolds AONB. Of that, it will have only one voice, equal to any of the other districts. However, the Secretary of State has the ability to appoint 15 out of the 40 places for the Cotswolds. Will the Minister, or whoever will make the nominations, consider the proportion when appointing people to fill those places that are in the Secretary of State's control? A large proportion appear not to be represented fully—I understand why and am not quarrelling with the decision—and I wonder whether it might be taken into consideration.
	While I am on appointments, the Secretary of State has the power to appoint eight out of the 29 on the Chilterns board—I do not quarrel with that—and 15 out of 40 on the Cotswolds board. Why are there so many? Does a laid-down proportion have to be appointed? Could not the Cotswolds AONB have been a smaller number? Obviously, eight out of 29 does not compare with 15 out of 40.
	I want to turn to the overall costs, on which the Minister has touched, and to mention the review of the noble Lord, Lord Haskins. I accept that the Countryside Agency has for this current year set aside some £7.9 million for the work of the AONBs. Can the Minister assure me that the costs allocated within that will not come from allocations to other AONBs which are not seeking this special treatment and that any extra money needed will be raised by the Countryside Agency in another way?
	Yesterday, my right honourable friend James Gray pointed out that an increase of 20 per cent was required to set up these new AONBs. The Minister, Mr Bradshaw, challenged that. However, in the letter my right honourable friend received from the Chilterns AONB officer, dated 23 May, the costs were said to be "significantly higher" and nearer the 20 per cent quoted rather than the estimate the Minister had given. Has that been looked at since yesterday?
	Finally, I turn to advertising for people who would like to be considered for appointment by the Secretary of State. I understand that advertisements have already been placed and that names have been received. I find that strange. We welcome these statutory instruments and I am sure that these statutory instruments will pass, but I must question whether it is right to advertise a post before it exists. I should like the Minister to comment on that.
	We welcome and support the establishment of the Chilterns and Cotswolds AONBs and wish them every success in the future.

Lord Shutt of Greetland: My Lords, we on these Benches are most supportive of these orders to set up the boards for these two beautiful areas of the countryside and I thank the Minister for setting out the proposals. I want to make two points, one of which arises from the comments made by the noble Baroness, Lady Byford.
	I believe that the Minister will have difficulty in telling us how much the costs will be. I have been thinking about the costs and the enthusiasm or otherwise of the local authorities in being involved in the boards. I do not know these areas of the country particularly well and I do not know which authorities will be less or more enthusiastic. However, it would be understandable if the local authority presently covering the bulk of the area were less enthusiastic. It might see another body being involved in that part of the country which it has seen as its own.
	I want to ask, therefore, whether the Minister sees these as slim or fat bodies. It is possible for them to be set up with great bureaucracies, several departments and so forth, or they can be set up with a slim operation and can contract with other bodies in the area—existing local authorities, voluntary bodies or other statutory bodies—to undertake certain work so that they do not have to set up shop themselves. It would be helpful to know which way they are going. Will they be set up as big businesses, or will they be co-operating with existing bodies using what is available?
	I want to refer to the number of members of these bodies. I am aware that there can be sensitivities. In the case of the Chilterns, the principal local authorities together have a majority; in the case of the Cotswolds, they will be in a minority. If the numbers have been arrived at with proper local consultation, that is fine. But it would be useful to know that the measure is understood and welcomed locally and that, where one place has a majority, that is accepted. I can see that there are grounds for either viewpoint, but that is the kind of issue that can be raised at the start of a new venture and it is as well to be clear about whether it has been agreed locally. I am very supportive of the orders and wish them well in the part that they play in enhancing this part of our countryside.

Lord Whitty: My Lords, I am grateful for the support of both Front Benches on the principle of establishing these boards. As the noble Baroness said, they were the subject of some discussion during the passage of the Countryside and Rights of Way Bill a few years ago, and therefore we are familiar with the subject.
	A number of different questions were raised. In relation to the attitude of the local authorities within these areas, when we say that the boards were "supported with qualifications", those qualifications did not refer to the establishment of the boards but to aspects of how the boards would operate. The comments did not come from the parishes but from the districts. They were not related to matters which appear in the orders; they referred, for example, to the need to have an agreement on the protocol on current responsibilities, to which I referred in my opening speech. That is clearly a matter for the board to determine.
	Those concerned wanted to ensure that the board did not have planning powers. In fact, the Act does not allow for the board to have planning powers, so that is all right. Concerns were also expressed about timing and funding, as one would expect. But there were no concerns about either the establishment of the board or the board structure.
	With regard to the membership of the board, the Act provides some degree of flexibility. It requires—I remember this as part of the debate four years ago—that the parishes must account for at least 20 per cent of the total numbers and the districts and counties at least 40 per cent. Therefore, to some extent, the Secretary of State appointments provide flexibility. In the case of both the Chilterns and the Cotswolds, the composition was agreed with everyone concerned but, in the case of the Chilterns, the requirement is that the local authorities will account for 51 per cent of the membership. Both measures went through the same process of agreement with the authorities.
	I cannot give an accurate figure for the expected cost because that will be a matter for the board to decide. The board and the local authorities will decide where some of the responsibilities lie and therefore to what degree a transfer of staffing will take place and so on. One would not expect the costs to be significantly higher, but that will depend on how much is transferred. It may well be that the estimate from the Chilterns officer is his best estimate at this point, but there is no figure for the ongoing costs. We think that the set-up costs may well be in the region of £400,000 per board.

Baroness Byford: My Lords, did I hear the Minister correctly? Did he say £100,000 for both boards or £400,000?

Lord Whitty: The figure is £400,000 for the set-up costs. Therefore, there is an immediate cost but the ongoing costs will be a matter for deliberation by the board itself.
	As to covering the VAT cost, compared with what it paid to the management board, the Countryside Agency has agreed to raise 80 rather than 75 per cent of the costs. Broadly speaking, that would cover the additional VAT that would have to be paid by the local authorities. That will come from the Countryside Agency's budget and, while no money will be taken away from other AONBs, nevertheless, it is within the overall budget of the Countryside Agency. In future, that may well be delivered in a different way as a result of the Haskins report, but there is no implication that other AONBs will suffer directly as a result.
	In terms of the representation of parishes, there is a slightly different approach in that, in the Cotswolds, the parish groups based on regions are divided up in a particular way. In the case of the Chilterns, the parish groups are based on the county areas, with the two largest county areas having two parish members and not one. However, one of those county areas is quite large in terms of the number of parishes that it contains. It is divided in that way via the higher-tier local authority rather than by the number of parishes. Again, that was agreed at local level.
	Incidentally, the noble Baroness referred to the Cotswold district council covering 80 per cent of the area of the Cotswolds AONB. I do not think that that figure was corrected last night in another place. While it is by far the largest area, the figure is about 47 per cent rather than 80 per cent.
	As to the Secretary of State's appointments compensating for the apparent under-representation in that regard, I do not think that that is appropriate. No doubt it is worth consideration, but the appointments made by the Secretary of State will be on the basis of individuals' merits and their appropriateness for the job rather than on the basis of representing a particular organisation or area.
	The noble Baroness also raised the question of advertising for those jobs. It is true that advertisements have been inserted in the media and that applications have been sought, but it has been made clear that the process is subject to these orders going through both Houses of Parliament and that no appointment will be made until that happens. Therefore, the advertisements have been placed in anticipation of the decision. They do not pre-empt the decision and no decisions have been based on appointments.
	I think that I have answered the majority of the questions unless the noble Baroness and the noble Lord wish to raise other points.

Baroness Byford: My Lords, I thank the Minister for giving way. I needed clarification on the point concerning the Cotswold district and I am grateful for his explanation. The second point that I raised was whether the extra money came within the overall budget of the Countryside Agency, and I think that the Minister clarified that. I understood that £7.9 million had been allocated from the Countryside Agency's budget for areas of outstanding natural beauty. Is the Minister saying that that figure will still stand and that the extra money will come from another pot within the Countryside Agency?

Lord Whitty: My Lords, we are talking prospectively but the Countryside Agency's budget is not fixed prospectively. I am saying that the money will have to come out of whatever total allocation the Countryside Agency has for future years or whatever changes of delivery follow from the Haskins report. But the money would not be taken from another AONB and put into these areas. Obviously the budgets may be adjusted for other reasons, and therefore I cannot give an absolutely clear answer to that point.

Lord Shutt of Greetland: My Lords, I may have blinked but I did not catch whether the Minister indicated that he had a view on whether the areas would have a slim or a plump operation. I think that that is an important point.

Lord Whitty: My Lords, in general, the organisation will be fairly slim and, subject to a decision between the boards and the local authorities, there will not be a significant increase in the numbers of staff over and above the limited number already employed by the management boards and those transferred from local authorities who are already engaged in that way. It is not anticipated that we shall create a huge and growing bureaucracy; it is simply that we shall carry out the work more efficiently and comprehensively.

On Question, Motion agreed to.

Cotswolds Area of Outstanding Natural Beauty (Establishment of Conservation Board) Order 2004

Lord Whitty: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the draft order laid before the House on 16 June be approved [22nd Report from the Joint Committee].—(Lord Whitty).

On Question, Motion agreed to.

Working Time Directive (EUC Report)

Lord Williamson of Horton: rose to move, That this House takes note of the report of the European Union Committee on The Working Time Directive: A Response to the European Commission's Review (9th Report, HL Paper 67).

Lord Williamson of Horton: My Lords, I should like to say at the outset that the Select Committee on the European Union and, in particular, its sub-committee on social and consumer affairs, which I have the honour to chair, considers that this report is important in substance and also well timed. It makes a clear contribution to that review and indicates where we must avoid dangerous consequences for working practices in the United Kingdom and, in particular, for healthcare. We received a very substantial amount of evidence on these points, on which I shall comment further.
	I should also like to say at the outset to the Minister that as the debate has developed there has proved to be a good deal of common ground between the Select Committee and the Government. The Government's response has in many respects been very positively viewed by the committee, although the solution to some of the problems is not yet apparent.
	In presenting the report to the House today and in commenting on the Government's response, I shall divide my speech into two parts: on the one hand, the question of the individual opt out from the 48-hour week and the linked issues, and on the other hand the effect of two judgments of the European Court of Justice, the Jaeger and SiMAP judgments, in particular on the organisation of our hospitals and healthcare.
	The European Working Time Directive dates from 1993. It is a health and safety measure, although comment about it extends to other related issues such as the most efficient use of labour or the need for a general improvement in work/life balance. The directive deals with entitlements to rest breaks and annual leave, limits on night work and health assessments for night workers, and, most importantly in the context of this inquiry, it sets a working time limit of 48 hours over seven days averaged over a reference period of not more than four months or, in the case of collective agreements, and only in that case, averaged over a reference period of up to 52 weeks.
	There are some exceptions to the application of the 48-hour limit, notably self-employed persons and family workers, persons with "autonomous decision-making powers" and individual workers who agree to a voluntary opt-out. The United Kingdom transposed the directive into United Kingdom law by regulations in 1998, including the voluntary opt out. The UK regulations were amended in 1999 bringing them strictly into line with the directive.
	Why has all this come up now? The reason is that the directive requires the council to re-examine both the derogation from the reference period through collective agreements and also the individual opt-out on the basis of an appraisal and proposal by the European Commission. The European Commission has published a communication covering these points and also two important judgments of the European Court of Justice, the SiMAP and Jaeger judgments, which affect in particular the health sector, and I shall come back to that. The Commission has launched a consultation, and this is where we come in. We have made our views known in this report and we believe that our views will be helpful to those most directly concerned; that is, employers and workers, and doctors, nurses and patients, and will also strengthen the Government's hand in the consultation.
	As I have indicated, the directive provides for different ways of allowing for a working week of more than 48 hours, necessary in some circumstances to respond to the nature of a business or occupation, including, for example, seasonal variations. The three main ways are, first, the use of a long reference period by collective agreement. That is used in continental countries where collective agreements are much more widespread than in the United Kingdom. Here in the private sector we have only about 22 per cent of employment covered by collective agreements.
	Secondly, there is the exemption for persons with autonomous decision-making powers. The evidence we received indicated that there are differences of interpretation about this phrase, which may extend the coverage of the provision substantially. The CBI told us that the Netherlands, for example, considers that all workers earning more than three times the minimum wage are automatically exempted. There are already some differences of substance and of classification between member states. For example, about 11.2 per cent of UK workers are considered to be self-employed but about 31.6 per cent in Greece, including, typically, waiters, if they have time off from celebrating their football win yesterday.
	Thirdly, there is the individual opt-out. Although the large majority of UK workers, about 80 per cent, do not work 48 hours or more, the individual opt out is quite widely used here to provide the flexibility necessary for business practice and because some workers wish to have the corresponding benefits of payment for overtime working.
	The Commission's review has concentrated rather heavily on the individual opt-out. Our report and the substantial volume of evidence submitted to us have done the same. It appeared probable that the Commission would propose the end of the individual opt out, and the European Parliament, following an extreme report from its Employment and Social Affairs Committee, has recommended that it should be phased out as soon as possible. The Commission commissioned a report on the operation of the opt-out in the United Kingdom. That report, by Professor Catherine Barnard of Cambridge University, provides some useful information about its practical operation. Your Lordships' Select Committee was particularly keen to ensure that the individual opt-out was genuinely voluntary, which is required by the directive and is the quid pro quo for its continuation.
	Turning now to the substance of the argument, should the individual opt-out from the 48-hour working week continue? The sub-committee looked at the issue of health and safety and not surprisingly different views were expressed on that point, in particular from the TUC and the CBI. Common sense suggests that working very long hours over a period of time can damage health and increase stress but we did not find evidence of any particular relationship between the voluntary individual opt out and adverse health and safety consequences. More generally, we agree with the Government in their response that:
	"The problem with working long hours is with the workplace culture, which we want to change, and not with the lack of laws".
	The sub-committee also examined the question of competitiveness, flexibility and efficiency, the CBI, the British Chambers of Commerce and the Federation of Small Businesses all arguing strongly in favour of the retention of the opt-out on these grounds, while the TUC argued that removal of the opt-out would give an incentive to achieve flexibility by other changes in management and organisation.
	The committee's conclusion is that the voluntary opt-out should be retained because the flexibility it offers is an important element in preserving competitiveness and is particularly suitable for the United Kingdom. It also preserves the right of those who want or need to work overtime.
	We are glad that the Government have endorsed this broad conclusion and note that, contrary to the earlier position, it now appears that the Commission is moving towards retention of the opt-out, at least for a period. But we were concerned about the practical application of the opt out. The individual opt-out must be a genuinely voluntary decision by the person concerned and the committee is firmly of the view that employees must be properly protected and not subject to coercion, whether explicit or implicit.
	We have suggested a number of safeguards; in particular, that a document requesting agreement to an opt-out from the 48-hour week should not be included with the contract of employment offered to an applicant for a job and should not be presented at the same time. There must also be a clear statement of the voluntary nature of the opt-out and the right of an employee to revoke it. Generally speaking, full transparency on all these issues is best.
	The Minister will no doubt explain the Government's position at the end of the debate. That position is in two documents: the Government's response to the Commission's review and the Government's response to the committee—our report. We broadly welcome that response, particularly in relation to the opt-out.
	The Government have stated that they are committed to retaining the flexibility which the opt-out provides, as well as tackling the long hours culture by other national initiatives, such as the DTI's Challenge Fund on work/life balance. On the application of the opt-out, the Government go a long way in the direction indicated by your Lordships' committee, pointing out that if problems are identified they would consider a requirement to separate the opt-out from a contract of employment, the possibility of making opt-outs time-limited and explaining that workers can withdraw consent.
	I turn now to the effects of the two European Court of Justice judgments—SiMAP and Jaeger. Those judgments have given rise to even more comment than the review of the directive itself, because they risk putting some of the work of hospitals in the United Kingdom, and indeed elsewhere in the European Union, into disarray and at least pose a risk to healthcare.
	We summarised the effect of those two judgments in our report. With a slight risk of over-simplification, we stated succinctly that one judgment requires that all on-call time should be treated as working time, even when the doctors are able to sleep. The other judgment requires that doctors are entitled to immediate compensatory rest after resident on-call duties, even if they have been able to rest while on call.
	The effect of the judgments is to reduce the availability of doctors or nurses for hospital duty, compared with the present pattern of work. This is particularly important for the United Kingdom because we have a long-standing practice of very long, probably excessive, hours for junior doctors in hospitals. We are already bringing that down and phasing in the application of the directive to junior doctors, with rest and break requirements coming into effect from 1 August this year, and a 58-hour maximum week being reduced by stages to 48 hours in 2009.
	Thus the effects of the two European Court of Justice judgments come on top of changes—good changes—which are being made with some difficulty in the running of our hospitals and healthcare. That is not only a UK problem; for example, Germany estimated the cost of the judgments to its health sector at 1.75 billion euros. France and Spain are responding by applying the individual opt-out for use in the health sector, and a number of the new member states may do the same.
	However, we have perhaps a more marked problem in the United Kingdom because of our relative shortage of doctors, the big difference in the ratio of junior to senior doctors and our system of delivering training to doctors by a wide dispersal of doctors in training in many hospitals, whereas some member states concentrate training in fewer centres.
	Considerable progress is being made on pilot schemes and other initiatives—the Government described that as "a compendium of solutions"—to change some working practices in hospitals, for example on a new "Hospital at Night" model. None the less, the evidence we received, in particular from the British Medical Association, the NHS Confederation, the Royal Colleges of Physicians, the Royal College of Obstetricians and Gynaecologists and the Royal College of Nursing made it quite clear to us that it will be impossible for the NHS to comply with the extension of the directive to junior hospital doctors by August of this year if the ECJ rulings are applied as they stand.
	We conclude that the serious practical implications of the judgments are such that rapid and effective action through an amendment of the directive is required. We are glad that the Government recognise that action at European level is needed, whether by treating separately the inactive part of on-call time or by other means. I hope that the Minister will reply specifically on this point as the sands of time are running out, bearing in mind the strength of the representations by the BMA, the NHS Confederation and others that sizeable numbers of UK hospitals could not comply with the directive on 1 August because of the judgments.
	We take the view that action in the interim is necessary. I hope that in replying the Minister will not only deal with the longer-term perspective, but also with the problem of the interim period, since the evidence, indeed, supported by the Government in their response, is that certain specialities and types of organisation will face very significant challenges. The committee's view is quite simple: healthcare must come first. These judgments have some repercussions in other sectors—care homes and outside healthcare—and the Government will also no doubt pay attention to that. I commend the report to the House.
	Moved, that this House takes note of the report of the EU Committee on The Working Time Directive: a Response to the European Commission's Review (9th report, HL Paper 67).—(Lord Williamson of Horton.)

Lord Harrison: My Lords, this is the first report of new Sub-Committee G. I say at the outset how agreeable my fellow members have been; that an expert secretariat helped the work of our new committee; and how capably we have been chaired by the noble Lord, Lord Williamson of Horton, whose exposition of the problem illustrates why he was the quiet expertise as Secretary-General of the European Commission for over 10 years.
	I take the opportunity to welcome and look forward to the maiden speeches of my noble friend Lord Snape—and to welcome a new recruit from the north-west—and that of my noble friend Lord Truscott, who served in the European Parliament with me. We look forward to his expertise not only on this matter, but also on Russia and development in Eastern Europe. I note that we have a quartet of new Labour Lords on my left and that there is a quintet of former Members of the European Parliament in the Chamber today.
	When I was a Member of the European Parliament some 12 years ago, I received a worrying phone call from a junior doctor working in a hospital within my constituency on the Wirral. He asked me when the Working Time Directive, which he had just heard about, was going to come into effect. He illustrated from his work his concerns and worries about the imposition of very long hours on junior house doctors like himself; and the dangers represented not only to him as a worker but also potentially to patients under his guard.
	I believe that the Working Time Directive now in place has been yet another triumph of the European Union. It has begun the task of ensuring that there are common high standards of health and safety at work, not only in the United Kingdom, but throughout the European Union. It has also added to the better functioning of the single market, so that I am reminded of Winston Churchill's concept and phrase that the Scrooge-like employer is not allowed to undercut or drive out the good employer by having the bad employer not look after his workforce. That is as current today as it was when Winston Churchill talked about it many years ago.
	As the noble Lord, Lord Williamson of Horton, has said, the time is ripe for a Commission review: there are problems associated with the Working Time Directive. But one of the by-products of the kind of examination carried out by your Lordships' committee is the recognition that a stimulus to change is brought about by European legislation. As we have a problem with junior house doctors' hours in the United Kingdom, the committee, through the evidence that it received, learnt of the pilot studies for reordering hospital doctors' time, called Hospital at Night programmes. That is fascinating in itself, but I put the following question to the Minister: if these reforms can take place to the benefit of, in this case, the National Health Service, what other reforms should be implemented, with or without the stimulus of a directive, and in what other industries—it does not remain exclusively the purview of the National Health Service?
	I agree with all but one of the committee's main conclusions, the most urgent of which was referred to by the noble Lord, Lord Williamson: the problem confronting us this August, when we shall welcome the reduction in hours as suggested but recognise that it will put an intolerable strain on the provision of hospital doctors. Of course the Government must incite neither complacency nor panic, but how will they respond? One of the committee's witnesses, James Johnson, the chairman of the BMA, said in response to the noble Baroness, Lady Greengross, who I am pleased to see in her place:
	"We have been trying to alert the Department of Health to the scale of the impending disaster for at least three years, as has a number of other bodies. The Department of Health's version is that one month ago they discovered there was a problem. The difference is as stark as that. It is very difficult to enter into negotiations with a body which refuses to admit that there is a problem, although they do now admit that there is a problem".
	I hope that the Minister can assure us that we are guided by neither panic nor complacency.
	The virtue of these reports—and, again, of European Union integration—is that we learn so much from other European Union countries about their practices in industry and health services. The noble Lord, Lord Williamson, mentioned that there are considerable differences between NHS practice and healthcare provision in other countries. The shortage of doctors in the United Kingdom is clear, despite this Labour Government's progress in expanding the service. The noble Lord, Lord Williamson, mentioned a hugely important ratio. Whereas four senior doctors mind one junior doctor in most European Union countries, in the United Kingdom the ratio is 1.4 senior doctors to one junior doctor. I hope that exposure of that situation helps us to promote reform to ensure that we have the very best NHS.
	I will not dwell on the SiMAP and Jaeger judgments, which were dealt with so adequately by the committee chairman. I shall deal with the question of long hours. I think that my committee colleagues shared my surprise because when we asked for evidence about the adverse effect on workers of long hours, especially from our colleagues in the TUC, there was clearly a lack of evidence, even though intuitively we thought that long hours meant problems for workers. I repeat to the Minister my hope that in the UK or, more preferably, at European level more research can be carried out to establish the correlation that most of us believe must exist between long hours and an impoverishment of workers and their ability to do jobs.
	The issue of long hours is difficult to adjudicate on. Long hours are healthy for some—I think, for example, of colleagues assembled in this Chamber. Most politicians work long hours and seem to thrive on them. Many industry managers, especially people who run small businesses, devote a long time to their work. If the work is interesting, it can be a stimulus. The bench-mark should be that no one should be obliged to work long hours because of poor pay or a threat to the job.
	I associate myself with the committee chairman in the view that we should consider the Dutch approach. As I understand it, in the Netherlands the rules do not apply to those earning three times the minimum wage. Perhaps that could be discussed in Brussels. Allied to that is the need for a better definition of "autonomous worker".
	As well as long hours, the committee wanted to examine the concept of flexibility, on which there is similar ambiguity. We concluded that we wanted to support the opt-out; that has been a major finding of our report. In some senses, practice in the UK differs from that in other European Union countries because it retains the opt-out, which may have been a key to success in British industry. But flexibility is not just for the employer; it is also advisable for employees. The Commission has asked us to look particularly at employees' work-life balance. They, too, require better opportunities for flexibility. Sometimes those needs might conflict with the flexibility required by industry managers; the issue must be resolved. The committee concluded that many other factors lead to the vibrant and healthy nature of industry, not the least of which is productivity. There, too, the comparisons between the United Kingdom and the rest of the European Union are very interesting.
	The committee decided to keep the voluntary opt-out, the British way; that is good. We need to guard against abuse. For instance, we were not certain whether this is widespread, but there is a danger that a new employee can be confronted with a job contract and be asked to sign the opt-out at the same time. That is a potentially bad practice. There perhaps ought to be a 48-hour gap between the signing of both those items, plus there could be a cooling-off period where the employee has the ability to change his or her mind.
	I indicated earlier that I agree with all the Committee's conclusions except one; the proposition that we might turn the opt-out round into an opt-in. That was put forward by the Federation of Small Businesses. It would be undesirable, and I hope that we can abandon it. I notice that time is flying. We also found that some of the provisions were being misapplied, possibly because they had been misunderstood. Is it possible for the Government with the CBI, the unions and the representatives of small businesses to illustrate and better publicise what the Working Time Directive promises?
	With those comments, I say once again that it has been a good first report by Sub-Committee G, and I welcome the Government's interim response to the report and to the Commission's proposals. I look forward to hearing the Minister's reply.

Lord Truscott: My Lords, in rising to make my maiden speech in this House, I thank your Lordships and all the staff for being so welcoming in my first 10 days here. That sentiment will be shared by all new Peers in the House today. I also give a special mention in despatches to my noble friend Lady Thornton, who has been showing me the ropes in my first few days. It is a particular pleasure to have the noble Lord, Lord Williamson of Horton, open this important debate today, not least because he was a distinguished Secretary-General of the European Commission at a time that overlapped with my time as an MEP. He and I are also members of Exeter College, Oxford, and share Exeter College as our alma mater.
	I commend him and the European Committee on the excellent report before us today. The Committee's work on European issues and its scrutinising role is rightly renowned both in the UK and abroad. This House includes many Members who have served with distinction in the institutions of the European Union, ranging from former commissioners and civil servants to ex-MEPs from all parties. On the Benches opposite, MEPs have included the noble Lord, Lord Plumb, still regarded as one of the finest chairs of the European Parliament; and the noble Baroness, Lady Hooper. The noble Baroness, Lady Nicholson, still serves in Brussels and Strasbourg.
	I remind your Lordships that there is now a gang of five Labour MEPs on this side of the House who served with me in the European Parliament between 1994 and 1999. My noble friend Lord Harrison is a stalwart of the EU Social Policy and Consumer Affairs Sub-Committee, he numbers among the gang of five, and he was well-respected as a highly diligent and knowledgeable MEP. As he said, four of us present in the House today were part of that group, including my noble friends Lady Billingham and Lord Tomlinson.
	Before turning to the debate in hand, I mention my two lasting impressions of the European Parliament. The first was the brevity of the speeches, which rarely exceeded five minutes.

Noble Lords: Oh!

Lord Truscott: My Lords, my noble friend Lord Tomlinson, another former MEP, was once permitted a speech of almost Gladstonian proportions on the EU's multi-billion euro budget—a full 12 minutes. My second lasting impression was the unnerving effect that the delay for translation could have when a Member tried to tell a joke. Sometimes, 30-odd seconds would elapse as the audience sat in stony silence, only to burst out laughing when the speaker had moved on to a more serious part of his or her speech.
	The new EU working time directive has been with us since 1993, as the noble Lord, Lord Williamson, said. I recall that when it was first mooted, colleagues on the centre-left opposed it because many countries were already working an average of less than 48 hours a week, which is the limit outlined in Article 6 of the directive. Britain, after all, still has the longest working hours in Europe. The committee wisely recommends that government, business and trade unions actively pursue other ways of improving competitiveness, so reducing dependence on long working hours whenever possible. The committee's report says:
	"Common sense suggests that very long hours working over a sustained period of time could damage the health of workers".
	The request for additional research is most welcome, a point that was reinforced by my noble friend Lord Harrison.
	At the risk of being controversial, I agree that the voluntary individual opt-out under Article 18 should remain, even if the UK is the only country in the EU to exercise it. According to the Chartered Institute of Personnel and Development, 70 per cent of those surveyed did not feel under employer pressure to work long hours, and 79 per cent signed the opt-out voluntarily. However, other evidence suggests that a minority—about one in five—felt that they did so under employer compulsion. That case is made forcefully by the trade unions, and I am pleased that the committee, the CBI and the Government are committed to tackle abuses of the opt-out to ensure that employees are given a real choice and that the longer hours worked are truly voluntary. Opt-out agreements must be in writing; they should be time-limited; and they should be accompanied by material explaining that workers have the right to withdraw consent. As the committee suggests, there should be a cooling-off period.
	The House should be content that the Government have shown willingness to examine all the suggestions, combined with consideration of additional enforcement and a publicity campaign for the working time regulations. Awareness of employee rights seems to lie at the core of the issue. If employees are more aware that they have the freedom to choose whether to opt out in the first place, it will make abuse and coercion less likely. For that reason, the Government should give that aspect priority attention, supported by adequate resources to do the job. I look forward to the Minister's comments on that point.
	The committee's report rightly stresses the importance of the Government's continuing to develop family-friendly policies, including more flexible working time arrangements that accord with the European Commission's social policy agenda. Important strides have already been made: improved opportunities for women, better childcare, help with career breaks and help with caring for the elderly and disabled.
	I do not propose to dwell on the controversial intricacies of the SiMAP and Jaeger decisions by the European Court of Justice. I am not a lawyer, and I am sure that it would not be awfully interesting to go into the details of the legal cases. However, important principles are involved. Suffice it to say that I hope that a compromise can be found that improves doctors' working conditions, protects standards of patient care and enhances Britain's excellent record of medical training.
	The Government have announced that nearly 95 per cent of doctors in training work for an average of 56 hours or fewer. Since September 2003, there have been over 7,000 more doctors in training than in 1997. That is all welcome. As someone who was resuscitated by an NHS doctor 30 years ago, after a road traffic accident, I assure the House that I would rather be operated on by a doctor who was not suffering from fatigue and over-work.
	The Government have acknowledged that implementing the Working Time Directive in the NHS by the deadline of 1 August may be problematic. A solution may lie in the evolution of current rotas and working patterns; a further boost from increased staffing levels; and a clearer Commission definition of inactive on-call time and compensatory rest. All of us, regardless of political persuasion, would like to see the National Health Service able to provide a first-class service to its patients, whatever the demands placed upon it.
	I note that we are now in a period of negotiation with the social partners, including UNICE, the European employers' federation; ETUC, the European employees' organisation; and CEEP, the public sector employers' organisation. Stavros Dimas, the EU's employment commissioner, is hopeful of an agreement. In the absence of consensus, the Commission is expected to put forward legislative proposals by September 2004. I remain optimistic that agreement on the future of the Working Time Directive can be reached.
	Without straying into controversy, I must say that, for me, the European Union is about mutually beneficial and peaceful co-operation between sovereign states. Whatever the views on the European Union held in the House, none can wish for a return to the bloody European conflicts of the past few hundred years or the last two world wars. "Jaw-jaw", in Churchill's phrase, is preferable to "war-war". My grandfather died of TB, after being held as a prisoner in the First World War; and my wife's grandfather died on the eastern front in the Second World War, fighting the Nazis. As with millions of Russians, his body was never found. Set in context, a little disagreement over the Working Time Directive between friends should not be insurmountable.

Baroness Greengross: My Lords, it gives me enormous pleasure to congratulate the noble Lord, Lord Truscott, on his excellent maiden speech. As an unashamed pro-European, it is also a great pleasure for me to note that the numbers of the gang of pro-Europeans and Members experienced in Europe in this House are rising. That is excellent news.
	Today we welcome an experienced speaker, as was very obvious from the noble Lord's speech. He brings both skill and knowledge to this House. An author and political analyst, the noble Lord is an Associate Research Fellow at the Institute for Public Policy Research. He has been involved with the Labour Party at the local level. From 1994 to 1999 he was an MEP, and the Labour spokesperson on foreign affairs and defence; a member of the Foreign Affairs Committee and the Economic, Monetary and Industrial Policy Committee. He has also recently published a book entitled Putin's Progress, which I am looking forward very much to reading. Someone with his depth of knowledge of Russia and eastern Europe, along with defence matters, will be particularly welcome in this House.
	I shall now take another lesson from the words of the noble Lord and follow his example of brevity. I do so because we have heard already many eloquent speeches on the committee's report. It was a privilege to serve on the committee, excellently chaired by my noble friend Lord Williamson of Horton and ably assisted by our Clerk and staff, who did a tremendous job. Aside from being very interesting, the report is valuable because, apart from its conclusions, it has highlighted several areas where our knowledge and the data are insufficient. A call was made for us to get the information we need.
	All members were agreed that exhaustion arising from long hours at work is a bad thing and can be dangerous. But we have to bear in mind that the culture of the workplace in this country is such that many people, rightly or wrongly, bank on overtime to make ends meet. They are quite willing to work longer hours and it will take time to change that culture. However, I think that change is coming about fairly quickly. The flexible hours and family-friendly polices in which we are now all involved will help to strike a better balance in the future.
	The unanimous agreement of the committee was important in that we all felt that any abuse of the voluntary individual opt out plans that we want to retain is something that needs to be tackled. Although the evidence did not suggest that there is a great deal of abuse, we thought it important to get rid of any that might arise immediately.
	There was a question about whether the health and safety basis of the report was the best approach, along with queries about the strength of the link between health and safety and the voluntary individual opt out. Again, that is an area where we need more information because the evidence was not particularly strong. If it can be shown to be strong, all would agree that the optout must be revised in order to bring about a safe culture that promotes healthy living.
	I am pleased to see that the Commission has now conceded that the voluntary individual opt out may be retained. However, I agree with other speakers that the widely varying definitions of what is an "autonomous worker" need to be looked at closely if they are to be taken seriously. I am less than impressed at the way some member states have got around the problem by naming as "autonomous workers" those they want to be able to opt out. The UK's approach—on an individual basis—is more straightforward and honest. This area, too, needs more research.
	We must always remember that this country—which I am sure some of our neighbours across the water still call "perfidious Albion"—remains a nation of small businesses. The right practice for our small businesses is different, and individual agreements are very frequent in this country. Small businesses cannot always have collective agreements, as is so often the case on the mainland of Europe.
	As stated in the report, we all agree that a balance needs to be found between flexible, competitive business practices and the right of workers to healthy, safe and unstressful working conditions. If the report represents one step towards encouraging that kind of better practice, it will have done a good job.
	Most of our witnesses came to the conclusion, as other speakers have confirmed, that the voluntary individual opt-out from the 48-hour week should be kept. It will help to maintain the flexible working patterns in this country; to meet the competitive challenge highlighted by the Minister when she gave evidence to us; and it will meet the right of individuals to have some say in the way they work.
	I shall not go into detail about the two recent judgments—SiMAP and Jaeger—but everyone felt strongly that it would be impossible to bring them into play by August of this year; compromise of some kind is essential.
	As regards the health service, our appalling ratio compared with some other European countries—not only of senior doctors to junior doctors but of doctors overall to patients—is a historical fact. We have enormous strengths in the health services; but also we have some weaknesses—and that is one. This work is a call to action and, through the commission which initiated it, to do something as quickly as we can.
	I agree that the Government have gone a long way by injecting resources into the training of more doctors and improving matters, but it will take a long time. I, for one, would not like to see doctors' training reduced too much because there are dangers involved in the rush to comply with the directive which—and this is my only criticism of their response—the Government did not highlight enough. I am worried that encouraging other staff, other nursing and allied professionals, to take over some of the roles that doctors now perform could be a risk to patients if we do not get it right—and getting it right means a substantial amount of additional training, especially in fields such as diagnosis. I am very worried about that.
	At the moment, it will be impossible for the health service to comply with the immediate rest period that the Jaeger judgment suggests we must introduce; it is perverse, it is impossible, and it must be changed. We know that France and Spain have already implemented their own opt-outs in the health sector. I hope very much that, as other countries—including Austria and the Netherlands—plan to do the same, the Commission will realise that it must do something about this.
	We obviously need time to adjust our practices. If the Working Time Directive and the impact of SiMAP and Jaeger cannot be dealt with properly, we shall put at severe risk not only patients but some of our most vulnerable people. If we do not have fully qualified people to deal with those who are vulnerable, ill, sick, frail and at risk, the whole thrust of the report—and, indeed, the Commission's intentions, which are wholly admirable—will go wrong. We must make sure that our health service is not put at risk, as are other industries, through rushing into practices we can ill afford at the moment.

Lord Snape: My Lords, I join my noble friend Lord Truscott in acknowledging the welcome that I and other new boys have received from all parts of this House. Even as a somewhat recycled and battered new boy, I have found it heartening that so many noble Lords from all parts of this House have been so welcoming. As far as the staff of this place are concerned, noble Lords are extremely fortunate to be supported by people of such quality and calibre. I will long remember the enthusiasm and desire to help of every member of staff that I have met. I know that I speak for all the new boys and girls in saying how delighted we are at the warmth of our reception.
	Having represented parts of the towns of West Bromwich and Wednesbury in the other place for some 27 years, I do not quite qualify these days as somebody from the north-west, as my noble friend described me. I hail from that part of the world originally and I must confess to a lifelong and probably fruitless relationship with Stockport County Football Club. All I could possibly say about that is that it perhaps beats stamp and engine number collecting, but not by very much.
	I welcome most of the provisions of the directive. I congratulate those members of the European Union Committee who laboured long and hard on producing their conclusions. As the towns that I previously represented in the West Midlands still have a considerable number of small businesses, I welcome the fact that the directive offers them some flexibility. If a big order comes in at a small engineering company of six, eight or 10 people, it is essential that all hands are put to the pumps. As I have indicated, some flexibility to meet the surge in demand is essential.
	It is interesting to see the diversity of views between those two great organisations, the CBI and the TUC, on these matters. In its document on the Working Time Directive and the individual opt-out, the CBI states:
	"There is little evidence that links the individual opt-out with an increase in workplace accidents or that use of the opt-out presents a health and safety risk . . . The CBI believes that ultimately it should be left for individuals to make these choices".
	So say all of us, but I would like some assurances from the Minister that proper monitoring will take place, so that individuals have genuine choices about the opt-out.
	The CBI view is not shared by its counterparts across the way at the TUC. It stated in a press release last September:
	"A new TUC poll finds that one in four people who have signed an opt out from working time rules were given no choice about opting out; two in three people who work more than 48 hours a week have not been asked to sign an opt out; and that only one employee in three even knows there is a 48 hour limit on the average working week".
	If that is true, we really need to tackle not only a long-hours culture, but a lack-of-information culture that means that so many people are not aware of their rights under the directive.
	Before being elected to another place, I spent my working life in the railway industry, so I cannot claim to have the same kind of expertise as previous speakers. I am afraid that the rarefied atmosphere of the railway industry does not quite equal toiling in the vineyards of Strasbourg and Brussels, but one does one's best. If there is any one industry where long working hours are endemic, it is the railway industry. Some of the sillier trade union leaders will say that that is an example of wicked railway management forcing poor railwaymen into work when they do not really wish to go. As someone who at one time had the responsibility of rostering train crews, I can affirm that that is not quite true. Noble Lords will be aware that certain shifts in the industry are paid at premium rates. At one time, it was my responsibility to post the Sunday roster. When the Sunday roster was posted, an audience would carefully gather in the enginemen's lobby, with all the reverence of the audience that one sees outside the Vatican on Easter Sunday. Woe betide a train crew supervisor or roster clerk who left off that roster, at time and three-quarters, a driver, fireman or guard who felt that it was his time to work on Sunday. For a train crew to work 72 hours a week was by no means unusual in those days. They were hardly family-friendly hours, although, having been on the sharp end of the tongues of some of those workers, perhaps they were family-friendly, because they kept them away from home for as long as possible.
	There is a culture of long working hours in the United Kingdom, especially in some industries. I suspect that that is no good thing. The committee laboured but could not find evidence that long hours were particularly dangerous. However, I remind your Lordships of the Clapham Junction accident of 1998, when the unfortunate signal technician held responsible had actually worked for months on end without a day off, because of the pressures of the modernisation of the former London and south-west railway line. Obviously, the long hours that he worked had an enormous impact. Sir Anthony Hidden QC, who conducted the inquiry into the Clapham accident, was quite scathing about the impact that those long hours had had on that particular individual, and how the hours that he worked led to that tragic mistake that caused so many deaths.
	Similarly, it is not by accident that airline crews are heavily restricted in the number of hours that they work every month. I cannot think that any of us would be particularly sanguine about taking our seat, whether business class to Brussels or to Strasbourg or elsewhere, in an aeroplane whose pilot had exceeded his working hours for that particular day, week or month. Much play has been made, and rightly so, of the situation within the National Health Service, with the enormously long hours that doctors—particularly junior doctors—are working, and the difficulties that will be caused to the health service when those hours are, quite properly, curtailed.
	A colleague of mine in the other place, Dr Maurice Miller, was himself a GP who used to dispense advice to his colleagues—invariably over a rather unhealthy late-night drink, I fear—that they should never be ill enough to go into hospital. So say all of us—but that is not always advice that one can follow. He also said that if they did have to go into hospital, they should never go in on Sunday night or Monday morning, because the consultant who saw you would have been awake since about four o'clock on Friday afternoon. That was 30 years ago, and it does not look as though things have improved very much since. I do not entirely lay the blame for that situation on the shoulders of my noble friend the Minister, because I do not think that his ministerial salary is worth that much. However, we must tackle the problem of the long working hours of doctors, as we do in various other professions.
	I conclude on this note. Of course, individual choice has a part to play in the number of hours that people spend at work, but proper monitoring—and enabling those who do not wish to work long hours not to do so—is something that the Government should consider. I look forward to reassurances from my noble friend on those points.

Lord Shutt of Greetland: My Lords, we do not get maiden speeches that often and then, lo and behold, we get two at once. First, I congratulate the noble Lord, Lord Truscott, on his maiden speech. He struck lucky that within 10 days, as a former MEP, he got a European debate. I congratulate him on that. He said he was going to be brief, and he was relatively brief, so let us say that we look forward to many brief speeches in future, and that the noble Lord's wisdom will be with us.
	The noble Lord, Lord Snape, did not need to strike lucky. With his warmth and humour, it would not have mattered on which debate he chose to make his maiden speech. I spotted that he was brought up in the north-west, but he has clearly had his being in the West Midlands. He has clearly been steeped in transport. In terms of the latest set of recruits to your Lordships' House, transport is doing quite well and I am delighted that there is someone else able to speak on such matters. He mentioned the word "roster". I have heard several of his colleagues use the word "roster" and I think that it has another meaning in this place. We very much look forward to further contributions from the noble Lord, Lord Snape.
	Sub-Committee G, chaired by the noble Lord, Lord Williamson, has done a very good piece of work. A few weeks ago, I said that one of the problems of our European committees and the reports they produce is that when they are debated on the Floor of the House, it is usually the noble Lords who wrote the reports who come to debate them. That is not the case today when a majority of the speakers has not been involved in producing this piece of work. I think that it is good that we have got some outside assessors to look at the work that has been done. It is very interesting indeed.
	On these occasions, when winding up, I have often referred to every speaker. I do not think that it would be right to do that on this occasion because each noble Lord has chosen a little piece from the report and has highlighted what has been important to him. I shall highlight those matters that surprised me. First, I was surprised that the definitive view of hours and rest is far from clear. I do not know how many definitions of work there are, but I have written down three: monotonous work, tiring work and interesting work. I suspect that the hours it is possible to work depend on the category into which the work comes. In your Lordships' House, work is always interesting and we can keep going on whatever subject it may be.
	Secondly, I was very surprised about the definition—or non-definition—of the autonomous worker. It seems so very surprising that there is no clear definition. It cannot be right that someone who gets three times the national average in wages or salary is therefore autonomous. Surely, it is to do with the type of work that the person is doing and not the pay scale. Therefore, I find the definition surprising.
	The third thing that I find surprising is the Barnard report, which has been mentioned. The authors of the Barnard report were questioned by the committee. Yet the committee does not feel able to reproduce the Barnard report in the back of its report because it is a private report to Europe. It beggars belief that the European Commission produced a report that is not public property. It does not mention individuals. It is a document that quite properly ought to be public property.
	There have been all sorts of concerns about opt-outs and opt-ins and how "voluntary" is voluntary, but the one issue about which people are particularly concerned is that we are now in July and next month is August. The concern is about how the NHS is going to cope in terms of junior doctors from August. It is something to which I hope the Minister will return and give us comfort.
	As I said, in this place there are always interesting things to do and interesting things to learn. I noticed in the document, for example, the word aliquot, which I had not come across before. It is certainly not in common usage in Greetland. However, I looked it up in the dictionary. I have come to the conclusion that the aliquot of time that I had allocated myself is now over.

Baroness Miller of Hendon: My Lords, before I begin, I should like seriously to apologise to the noble Lord, Lord Williamson of Horton, for not coming in to the Chamber until he had been speaking for two minutes. I could give the House a long excuse, but that would not be appropriate as noble Lords would find it boring and I would perhaps be trying to lessen my fault. I just did not notice the time on the annunciator. I am, however, grateful that the noble Lord, Lord Williamson, saw me much earlier in the day so that he knew that I was here. I am most grateful to my noble friend Lady Byford, who made a note of the first few items on which the noble Lord commented.
	I join other noble Lords in thanking the noble Lord, Lord Williamson of Horton, and all the other committee members for their most excellent report. It was not only very interesting; it was a very easy report to read. I say to the noble Lord, Lord Shutt, that I did not notice the word he mentioned. But I find that I am much better educated after hearing his contribution.
	I should also like to say how much I enjoyed the two maiden speeches, of the noble Lords, Lord Truscott and Lord Snape. I had a few words with the noble Lord, Lord Truscott, earlier, and I said that if a noble Lord says in following a noble Lord's maiden speech that, "It was very interesting and we look forward to hearing more interesting speeches from him", it probably means that he did not agree with much of the speech. That is about the kindest thing that one can say in such circumstances. In fact, however, both maiden speeches today were excellent. I shall say no more about them because the noble Baroness, Lady Greengross, and the noble Lord, Lord Shutt, have already spoken so well about them.
	I should like to remind your Lordships why we in the United Kingdom are discussing the Working Time Directive at all today. The origins of the concept are in the Social Chapter, to which John Major, on behalf of our country, declined to subscribe. However, in order to circumvent that, the project was moved out of the Social Chapter and into the zone of health and safety. Of course we did not have any veto over that.
	I suppose that it is correct to say that the powerful German trade unions and the militant French unions both have their own national reasons for wanting to keep things exactly as they are. However, I was interested to hear both the noble Lords, Lord Truscott and Lord Harrison, and the noble Baroness, Lady Greengross, point out that in this country the culture is somewhat different. It may very well be that it is gradually dawning on both Germany and France that talk about a 35-hour or 32-hour week is probably damaging their economy and possibly hurting their competitiveness and job prospects—matters in which we are doing really very well. I say that only in passing.
	A very large proportion of British society, employers and employees alike, are ambitious to own their own homes, as distinct from renting them, as is more the norm on the continent. That is another, slightly different aspect of the debate. Motor cars full of electronic gadgetry and holidays abroad are all part of the huge national shopping list, a list that is sometimes fuelled by a very large mortgage and credit card debt that has just reached the staggering total of £1 trillion. However one looks at it, all of that will have to be paid for. If people want to engage in that way, at some stage they will have to pay for it.
	In a free society there is no reason why those with personal ambition to progress in their field of work or to acquire more for themselves and their families, or for whatever reason, should be prevented from doing so. I was very interested to hear the noble Lord, Lord Snape, talk of his experience of rostering on a Sunday when he left some employees out who became very uptight as they wanted to work to earn more money. It was not a question of a dreadful employer making employees work those hours but of a choice to do so on the part of those employees.
	I have not yet discussed hospital working hours but I must say how lucky we are in this House that the noble Lord, Lord Truscott, was resuscitated by a doctor who was not too tired to do the job efficiently thereby enabling us to benefit from the experience gained during his long career.
	I turn to the first question that I hope the Minister will be able to answer today. My honourable friend the Member for Eddisbury, the shadow Secretary of State for Industry, has been unable to obtain an unequivocal reply from the Secretary of State. Why do the Secretary of State and the Prime Minister refuse—perhaps that is too harsh a word—or decline to comment on their own Labour MEPs who have not once, but twice, voted to scrap Britain's opt-out, which on the DTI's own estimates would cost British business £9 billion a year? The Labour MEPs' vote in the European Parliament to scrap the opt-out was decisive in passing the Motion, which in turn is a significant influence on the deliberations of the Commission as it reviews the status of the United Kingdom's derogation.
	Your Lordships my be enlightened to know—indeed, I was as I did not know it—that the philosophy of the Labour MEPs is unashamedly set out on their website where they hail the 48-hour week as,
	"the number one reason to back Europe".
	It is interesting to note that that is what they put at the top of their list.
	I hope that we shall hear the Minister say in replying to the debate that the Government unequivocally support the opt-out and that they will not allow it to be further eroded or chipped away one slice at a time. In short, I hope that we shall hear from the Minister that the Government accept the first and key issue identified in the excellent report of the noble Lord, Lord Williamson. I do not apologise for quoting it in full. It states:
	"The voluntary individual opt-out from the 48-hour working week . . . should be kept: it offers the flexibility which employers need in meeting global competitive challenges, and it is particularly suitable for British circumstances. It also preserves the right of those who want or need to work overtime".
	There is one major problem as regards working time that is indeed difficult to resolve. I refer to the two European Court judgments that have already been mentioned, and which the report discusses in detail, affecting hospital doctors. The SiMAP case, which originated in Spain, ruled that resident hospital doctors' time on call even when they are able to sleep—noble Lords should note that—nevertheless should be treated as working time, as the noble Lord, Lord Williamson, mentioned in introducing the debate. To comply with that ruling by this August—just two months away—would clearly be totally impossible for the National Health Service. What is the Government's solution? Of course, it is nice to know—but this is not a solution—that about 6,030 students entered medical school last autumn, but they will not be qualified for another six years.
	The Department of Health in a letter to the noble Lord, Lord Williamson of Horton, while claiming that,
	"some Trusts have already achieved compliance",
	admitted that,
	"a small number of specialities and certain types of organisation face very significant challenges".
	How many specialities and what types of organisation are involved? How many such organisations are involved?
	In response to the judgment the committee stated in the baldest possible terms:
	"We say more time is needed to work out a common-sense compromise that improves doctors' working conditions without putting standards of patient care at risk or harming medical training".
	All noble Lords who have spoken have said something along those lines. I realise that "common-sense" is a phrase that the Lord Chancellor's Department now deprecates vis-a-vis magistrates, in the interest of political correctness, but what is the Government's attitude to the strong recommendation? What, if anything, are the Government going to do about it?
	The other relevant European Court decision is in the case of a German doctor, Norbert Jaeger. The Court ruled that doctors were entitled to immediate compensatory rest after resident on-call duties, even if they had been resting. The committee of the noble Lord, Lord Williamson, called that interpretation "perverse and completely impractical". It could hardly have been blunter than that. It called on the Government for urgent action to get the ruling changed, as do we. What are the Government going to do about it?
	I return to the broader aspect of the directive. It is reported that:
	"Last minute lobbying by Neil Kinnock, a European Commission Vice President, and John Monks, former head of the TUC and currently head of the European Trade Union Confederation, forced officials to put the more radical option into a draft document from the Commission's Employment Directorate".
	On the other hand, the Secretary of State recently said:
	"Some people want to get rid of the opt-out. We are not prepared to do that . . . it would be bad for business and bad for hard working families".
	I hope that the Minister will make it clear who speaks for Britain on the issue. Is it the Secretary of State or Neil Kinnock, the vice-president of the Commission? Is it Mr Monks, a strong and influential Labour supporter, or the 24 Labour MEPs, who twice did not vote in favour of Britain's opt-out in the crucial vote in the European Parliament? It would be nice if the Minister could tell us but, from looking at him, I am not too sure whether he will be able to.
	The abolition, or even the whittling-away, of our opt-out would seriously damage British labour-market flexibility and competitiveness. The cost would be, as I have said previously, and as the Government admit, at least £9 billion. The majority of British workers and employers are in favour of retaining the opt-out. A limit—any limit—might deny people the freedom to choose their own working patterns. It would prevent millions of people who wished to do so earning overtime pay. The Labour Government say that they are the friend of British business, but two of their most prominent supporters and Labour's contingent of MEPs reveal another picture. For the sake of British jobs, it is time that the Government bring their MEPs into line before they do further damage.
	The committee said in its conclusions,
	"the flexibility offered by the voluntary individual opt-out is an important element in preserving competitiveness".
	The last paragraph of the report's recommendations said that,
	"we reiterate our conclusion that the voluntary individual opt-out should be retained".
	I do not need to rehearse every conclusion that the committee reached, because the noble Lord, Lord Williamson of Horton, covered them all so well when he introduced this short debate. However, I hope that your Lordships will take careful note of what he and others have said, and that the Government will act on the excellent advice that they have been given.
	It is time that the Government did more than pay lip service to maintaining the opt-out, fully and completely. This is the opportunity for the Government unequivocally to demonstrate their support for the opt-out by accepting the report, without reservation.

Lord Davies of Oldham: My Lords, it has been a most interesting and stimulating debate. The quality of the introduction by the noble Lord, Lord Williamson, and the plaudits that he has already received from other members of the sub-committee for its work, reflect his work as its chairman. We do not always have debates of such high calibre on Friday afternoons, and I congratulate the noble Lord on attracting to it two maiden speakers who contributed many significant points that needed to be made on what we all recognise is a complex range of issues.
	My noble friend Lord Truscott gave an erudite introduction to those issues. He speaks against a background of very considerable experience in the European Parliament and we are grateful that we shall have the benefit of that experience in future debates. As for my old and noble friend Lord Snape, I heard his first maiden speech 30 years ago in the other place. I assure your Lordships that his style has not changed at all. His wit and humour were prevalent then and I am delighted to see that they have survived the years of trials and tribulations that we have all been through. It will also be recognised that there is authority in the important points that he makes in debate; they have not all been added by the years, because I remember him making some very important points 30 years ago. Nevertheless, the House will benefit from his experience, too, and we will certainly benefit from his wit, humour and contributions.
	As the noble Lord, Lord Williamson, indicated, the Government have already substantially presented their position in response to the report and, as he was kind enough to indicate, the Government agree on the most salient and significant points. On crucial issues regarding opt-outs, on which I have been pressed on every side, not least by the noble Baroness, Lady Miller, perhaps I may reassure her on one matter. She may produce the longest list of significant bodies and names who are on one side of an argument that she wishes, but the Government are the Government. Secretaries of State exercise power as elected members of the Cabinet on behalf of the Government. She may trawl around any other opinions that she wishes—and in a democratic society it would be amazing if there were not a range of opinions on such a significant topic—but I speak on behalf of the Government who are united in their position on these matters.
	First, I shall deal with more general issues, although I will spend a little time on the SiMAP and Jaeger judgments, because they are of particular significance to the health service, as the noble Lord, Lord Williamson, indicated. His committee had looked at those with some care and they have presented difficulties for all of us. I wish to make it absolutely clear that the Government's primary objective with regard to the health service is to provide the highest possible quality of healthcare. All else is subordinate to that. Nevertheless we recognise that there are issues regarding the question of working hours and these particular European Court judgments.
	Noble Lords will recognise that the Commission is still consulting on the operation of the Working Time Directive and, as yet, has not produced any formal legislative proposals. They will follow from the consultation process this September. I wish to emphasise the timeliness of the report. As the noble Lord, Lord Williamson, indicated, it is bang on time in terms of presenting an important perspective on these matters and giving the Government the opportunity to reply to that perspective. This debate takes those issues a little further.
	In our response to the committee's report we confirmed our commitment to retaining the flexibility that the opt-out provides, while at the same time recognising that there is an issue about tackling the long-hours culture in the British workplace. We are determined that the opt-out should not be abused. It must be truly voluntary to be legal under existing UK law. I can reassure my noble friends and others who were anxious that workers would not have total freedom on this. We are looking at ways in which we will, eventually, enshrine in law that necessary right of workers to ensure that the voluntary aspect of the issue is confirmed. We made clear in our response to the committee that we are prepared to look at a number of ways to examine how it is being used.
	That links to our commitment to reduce working hours in the United Kingdom. To help us reach a better understanding on the nature of long hours' working within the UK, we recently published a preliminary consultation. It invites views on how we can ensure that workers have real choice about working long hours; how we can protect their health, which several noble Lords have indicated to be important, while they work long hours; and how we can raise people's awareness of their rights. The only way in which people can defend their rights is by being aware of them, particularly in employment where we recognise that the position of the individual is of great importance.
	I agree with the noble Baroness, Lady Miller, that one distinguishing feature of our economy is the vast range of small businesses. In contrast with many of our continental partners in the EU, we recognise that this raises for workers and their rights particular issues on how they are to articulate and defend them and how we can protect those small businesses and their success. We all recognise that a great deal of the success of the UK economy is based upon the flexibility that we have enjoyed over the years.
	There is one point I want to emphasise to the House before turning to the significant issues of the judgments on health. This Government have been very concerned to reduce the hours of doctors and those practising in the health service. We have all taken significant action to limit the hours of junior doctors. There are problems consequent on these two judgments as regards certain aspects of health service work and I shall comment on those in detail. However, I want to put on record the obvious point about the considerable progress we have made in reducing working hours.
	Our commitment to that is a reflection of the substantial resources that we have committed to the health service, enabling us to increase the number of doctors in order to tackle some of these issues. We want to provide better care for patients and we need more doctors to provide that adequate care. We also recognise that without additional doctors we cannot purport to tackle the issue of successfully reducing hours. I want those aspects of the Government's achievement, which predates this discussion of the report and the problems in respect of the judgments, to be considered a reflection of our commitment to making progress in this area.
	The noble Lord, Lord Williamson, indicated that his committee was aptly timed to play its full part in the second stage of the Commission's consultation process. On the basis of the report, our responses to it and the considerable amount of consultation in which we have been involved in this country, we will be seeking to persuade the Commission and other member states of the importance of the individual opt-out to the UK economy. That exercise will be carried out with great force over the next few weeks.
	The issue which I have indicated causes us some difficulties was reflected in the speeches of my noble friends who made their maiden contributions to the work of this House. Although I shall talk a great deal about the formal issues surrounding working hours, perhaps, in passing, I may remind my noble friends that I am Deputy Chief Whip. Therefore, any suggestion that they should pray in aid any outside agency to limit their hours is not on. We have a broad understanding that, whatever obtains anywhere else, this place is a law unto itself, and I have no doubt that they signed on the dotted line when they happily joined us.
	As has been reflected in a number of contributions to the debate, the judgments in the SiMAP and Jaeger rulings mean that time spent on call residentially and at work in, for example, hospitals is now classed in its entirety as "working time". The noble Baroness, Lady Miller, also made that point. The Jaeger judgment further complicated matters by ruling that compensatory rests due after a period of work should be taken immediately after that period of work. That creates enormous difficulties for doctors who are called out overnight. Their interrupted rest means that they are due compensatory rest but, if they are scheduled to work the following day, it is obvious that patients will suffer from cancellations. That is why we must introduce some flexibility.
	I am grateful for today's debate and I am grateful, in particular, to the committee because it identified this issue and helped us in our response. I noticed that the noble Baroness, Lady Greengross, was also concerned to emphasise that point, and we are also grateful for her work with the committee. Although we do not shy away from our responsibilities both to reduce hours in the health service and to ensure that we increase the service to patients, it is clear that those judgments raise issues on which we are involved in substantial consultation.
	We are also grateful for the pilot studies that have taken place. I want to reassure my noble friend Lord Harrison, who suggested that the Government might be indulging in either panic or complacency with regard to these issues. Neither is the case. He knows well enough that the Government will pursue a steady course in dealing with a tricky and difficult problem and that they will handle it on the basis of a coherent strategy. Therefore, we have pilot studies on these issues to see how we can make progress so far as concerns hospitals. In fact, my noble friend referred favourably to the Hospital at Night model. It is an important guide to the way in which we need to tackle the issue of the availability of doctors. I reassure the House that the Government are fully cognisant of the significance of carrying out effective action in that area.
	New ways of working are key to implementing the directive in the health service. I emphasise the Government's commitment to ensuring that we have the resources available for it. More than 7,000 doctors are in training. I accept that the noble Baroness, Lady Miller, indicated that it takes some time before doctors in training are on-stream. However, I notice how the Opposition berate us because doctors are not available immediately but only in training. But when it comes to the problem of the inadequate number of dentists—

Baroness Miller of Hendon: My Lords, I am grateful to the noble Lord for giving way. I most certainly did not berate the Minister. He should know that I never berate anyone. I was simply making the point that we still have to deal with this problem because doctors take six years to train. That was a compliment to the Minister because the Government have ensured that more students are entering medical school.

Lord Davies of Oldham: My Lords, the noble Baroness has a more generous spirit than I gave her credit for, and I apologise on this occasion. I thought that she was chiding us about the number of doctors that we were providing, and I am aware that her colleagues are not quite so generous in their judgment on this Government. Perhaps I may take the obvious area: they are forever—I use the word again—berating us about the inadequacy of dental services when it was the inadequacy of the provision of dentists in training a decade ago, when they were in power, that caused the problem. However, I shall desist from pursuing these issues any further and respect very much the terms in which the noble Baroness presented the issues at this point.
	I emphasise that we are very aware of and active in tackling both the existing and potential problems in these two contentious areas relating to the judgments. We are committed to maintaining labour market flexibility, to which the individual opt-out is certainly the key, while ensuring that individual workers are protected. We shall continue to press the Commission and other member states for its retention over the coming weeks and we intend to deliver on that front.
	We shall continue to seek an urgent legislative change to the directive in the light of the SiMAP and Jaeger judgments to provide more flexibility in the provision of healthcare. Good progress continues to be made with implementation of the Working Time Directive across the health service. We recognise the two particular difficulties, which are causing us to consider certain issues with great care, but I want to assure the House that the health service is in the very good hands of a government that are committed to pushing enormously significant additional resources into it.
	As far as the Working Time Directive is concerned, I can reassure the House that the Government responded to the very forceful arguments put by the committee chaired by the noble Lord, Lord Williamson. We are in favour of and will pursue the process of continuing the opt-out.

Lord Williamson of Horton: My Lords, not many movers of Motions have the privilege and pleasure of two excellent maiden speeches. I thank the noble Lords, Lord Truscott and Lord Snape, for their speeches. In the words of the directive, they have demonstrated their autonomous decision-making powers and an excellent presentation of their views.
	On the substance of the debate, there is a large measure of common ground, which is welcome. There is one point on which we know we are in fairly choppy water, which is the result of the two judgments on the health service in the near future. We may be in choppy water, but at least we are rowing in the same direction.

On Question, Motion agreed to.
	House adjourned at seventeen minutes past three o'clock.